|
$5,000 or more but less than
$50,000 $100,000, and (4) a Class |
1 felony if the value of the property is $50,000 $100,000 or |
more
or if the elderly person is over 70 years of age and the |
value of the
property is $15,000 or more or if the elderly |
person is 80 years of age or
older and the value of the |
property is $5,000 or more.
|
(c) For purposes of this Section:
|
(1) "Elderly person" means a person 60
years of age or |
older.
|
(2) "Person with a disability" means a person who
|
suffers from a physical or mental impairment resulting from
|
disease, injury, functional disorder or congenital |
condition that impairs the
individual's mental or physical |
ability to independently manage his or her
property or |
financial resources, or both.
|
(3) "Intimidation" means the communication to an |
elderly person or a
person with a disability that he or she |
shall be deprived of food and
nutrition,
shelter, |
prescribed
medication or medical care and treatment.
|
(4) "Deception" means, in addition to its meaning as |
defined in Section
15-4 of this Code,
a misrepresentation |
or concealment of material fact
relating to the terms of a |
contract or agreement entered into with the
elderly person |
or person with a disability or to the
existing or
|
pre-existing condition of
any of the property involved in |
such contract or agreement; or the use or
employment of any |
|
misrepresentation, false pretense or false promise in
|
order to induce, encourage or solicit the elderly person or
|
person with
a disability to
enter into a contract or |
agreement.
|
The illegal use of the assets or resources of an
elderly |
person or a person with a disability includes, but is not |
limited
to, the misappropriation of those assets or resources |
by undue influence,
breach of a fiduciary relationship, fraud, |
deception, extortion, or
use of the assets or resources |
contrary to law. |
A person stands in a position of
trust and confidence with |
an elderly person or person with a
disability when he (i) is a
|
parent, spouse, adult child or other relative by blood or |
marriage of the
elderly person or person with a disability, |
(ii) is a joint
tenant or
tenant in common with
the elderly |
person or person with a disability, (iii) has
a legal or
|
fiduciary relationship
with the elderly person or person with a |
disability, or (iv) is a financial
planning or investment |
professional.
|
(d) Limitations. Nothing in this Section shall be construed |
to limit the remedies
available to the victim under the |
Illinois Domestic Violence Act of 1986.
|
(e) Good faith efforts. Nothing in this Section shall be |
construed to impose criminal
liability on a person who has made |
a good faith effort to assist the
elderly person or person with |
a disability in the
management of his or her
property, but |
|
through
no fault of his or her own has been unable to provide |
such assistance.
|
(f) Not a defense. It shall not be a defense to financial |
exploitation of an elderly
person or person with a disability |
that the accused reasonably believed
that the victim was
not an |
elderly person or person with a disability.
|
(g) Civil Liability. A person who is charged by information |
or
indictment with the offense of financial exploitation of an |
elderly person
or person with a disability and who fails or |
refuses to return
the victim's property
within 60 days |
following a written demand from the victim or the victim's
|
legal representative shall be liable to the victim or to the |
estate of the
victim in damages of treble the amount of the |
value of the property
obtained, plus reasonable attorney fees |
and court costs. The burden of
proof that the defendant |
unlawfully obtained the victim's property shall be
by a |
preponderance of the evidence. This subsection shall be |
operative
whether or not the defendant has been convicted of |
the offense.
|
(Source: P.A. 95-798, eff. 1-1-09; 96-1551, eff. 7-1-11.)
|
Section 10. The Unified Code of Corrections is amended by |
changing Section 5-5-6 as follows:
|
(730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
|
(Text of Section after amendment by P.A. 96-1551)
|
|
Sec. 5-5-6. In all convictions for offenses in violation of |
the Criminal
Code of 1961 or of Section 11-501 of the Illinois |
Vehicle Code in which the person received any injury to his or |
her person or damage
to his or her real or personal property as |
a result of the criminal act of the
defendant, the court shall |
order restitution as provided in this Section. In
all other |
cases, except cases in which restitution is required under this
|
Section, the court must at the sentence hearing determine |
whether restitution
is an appropriate sentence to be imposed on |
each defendant convicted of an
offense. If the court determines |
that an order directing the offender to make
restitution is |
appropriate, the offender may be sentenced to make restitution.
|
The court may consider restitution an appropriate sentence to |
be imposed on each defendant convicted of an offense in |
addition to a sentence of imprisonment. The sentence of the |
defendant to a term of imprisonment is not a mitigating factor |
that prevents the court from ordering the defendant to pay |
restitution. If
the offender is sentenced to make restitution |
the Court shall determine the
restitution as hereinafter set |
forth:
|
(a) At the sentence hearing, the court shall determine |
whether the
property
may be restored in kind to the |
possession of the owner or the person entitled
to |
possession thereof; or whether the defendant is possessed |
of sufficient
skill to repair and restore property damaged; |
or whether the defendant should
be required to make |
|
restitution in cash, for out-of-pocket expenses, damages,
|
losses, or injuries found to have been proximately caused |
by the conduct
of the defendant or another for whom the |
defendant is legally accountable
under the provisions of |
Article V of the Criminal Code of 1961.
|
(b) In fixing the amount of restitution to be paid in |
cash, the court
shall allow credit for property returned in |
kind, for property damages ordered
to be repaired by the |
defendant, and for property ordered to be restored
by the |
defendant; and after granting the credit, the court shall |
assess
the actual out-of-pocket expenses, losses, damages, |
and injuries suffered
by the victim named in the charge and |
any other victims who may also have
suffered out-of-pocket |
expenses, losses, damages, and injuries proximately
caused |
by the same criminal conduct of the defendant, and |
insurance
carriers who have indemnified the named victim or |
other victims for the
out-of-pocket expenses, losses, |
damages, or injuries, provided that in no
event shall |
restitution be ordered to be paid on account of pain and
|
suffering. If a defendant is placed on supervision for, or |
convicted of,
domestic battery, the defendant shall be |
required to pay restitution to any
domestic violence |
shelter in which the victim and any other family or |
household
members lived because of the domestic battery. |
The amount of the restitution
shall equal the actual |
expenses of the domestic violence shelter in providing
|
|
housing and any other services for the victim and any other |
family or household
members living at the shelter. If a |
defendant fails to pay restitution in
the manner or within
|
the time period specified by the court, the court may enter |
an order
directing the sheriff to seize any real or |
personal property of a defendant
to the extent necessary to |
satisfy the order of restitution and dispose of
the |
property by public sale. All proceeds from such sale in |
excess of the
amount of restitution plus court costs and |
the costs of the sheriff in
conducting the sale shall be |
paid to the defendant. The defendant convicted of
domestic |
battery, if a person under 18 years of age was present and |
witnessed the domestic battery of the
victim, is liable to |
pay restitution for the cost of any counseling required
for
|
the child at the discretion of the court.
|
(c) In cases where more than one defendant is |
accountable for the same
criminal conduct that results in |
out-of-pocket expenses, losses, damages,
or injuries, each |
defendant shall be ordered to pay restitution in the amount
|
of the total actual out-of-pocket expenses, losses, |
damages, or injuries
to the victim proximately caused by |
the conduct of all of the defendants
who are legally |
accountable for the offense.
|
(1) In no event shall the victim be entitled to |
recover restitution in
excess of the actual |
out-of-pocket expenses, losses, damages, or injuries,
|
|
proximately caused by the conduct of all of the |
defendants.
|
(2) As between the defendants, the court may |
apportion the restitution
that is payable in |
proportion to each co-defendant's culpability in the
|
commission of the offense.
|
(3) In the absence of a specific order apportioning |
the restitution,
each defendant shall bear his pro rata |
share of the restitution.
|
(4) As between the defendants, each defendant |
shall be entitled to a pro
rata reduction in the total |
restitution required to be paid to the victim
for |
amounts of restitution actually paid by co-defendants, |
and defendants
who shall have paid more than their pro |
rata share shall be entitled to
refunds to be computed |
by the court as additional amounts are
paid by |
co-defendants.
|
(d) In instances where a defendant has more than one |
criminal charge
pending
against him in a single case, or |
more than one case, and the defendant stands
convicted of |
one or more charges, a plea agreement negotiated by the |
State's
Attorney and the defendants may require the |
defendant to make restitution
to victims of charges that |
have been dismissed or which it is contemplated
will be |
dismissed under the terms of the plea agreement, and under |
the
agreement, the court may impose a sentence of |
|
restitution on the charge
or charges of which the defendant |
has been convicted that would require
the defendant to make |
restitution to victims of other offenses as provided
in the |
plea agreement.
|
(e) The court may require the defendant to apply the |
balance of the cash
bond, after payment of court costs, and |
any fine that may be imposed to
the payment of restitution.
|
(f) Taking into consideration the ability of the |
defendant to pay, including any real or personal property |
or any other assets of the defendant,
the court shall |
determine whether restitution shall be paid in a single
|
payment or in installments, and shall fix a period of time |
not in excess
of 5 years, except for violations of Sections |
16-1.3 and 17-56 of the Criminal Code of 1961, or the |
period of time specified in subsection (f-1), not including |
periods of incarceration, within which payment of
|
restitution is to be paid in full.
Complete restitution |
shall be paid in as short a time period as possible.
|
However, if the court deems it necessary and in the best |
interest of the
victim, the court may extend beyond 5 years |
the period of time within which the
payment of restitution |
is to be paid.
If the defendant is ordered to pay |
restitution and the court orders that
restitution is to be |
paid over a period greater than 6 months, the court
shall |
order that the defendant make monthly payments; the court |
may waive
this requirement of monthly payments only if |
|
there is a specific finding of
good cause for waiver.
|
(f-1)(1) In addition to any other penalty prescribed by |
law and any restitution ordered under this Section that did |
not include long-term physical health care costs, the court |
may, upon conviction of any misdemeanor or felony, order a |
defendant to pay restitution to a victim in accordance with |
the provisions of this subsection (f-1) if the victim has |
suffered physical injury as a result of the offense that is |
reasonably probable to require or has required long-term |
physical health care for more than 3 months. As used in |
this subsection (f-1) "long-term physical health care" |
includes mental health care.
|
(2) The victim's estimate of long-term physical health |
care costs may be made as part of a victim impact statement |
under Section 6 of the Rights of Crime Victims and |
Witnesses Act or made separately. The court shall enter the |
long-term physical health care restitution order at the |
time of sentencing. An order of restitution made under this |
subsection (f-1) shall fix a monthly amount to be paid by |
the defendant for as long as long-term physical health care |
of the victim is required as a result of the offense. The |
order may exceed the length of any sentence imposed upon |
the defendant for the criminal activity. The court shall |
include as a special finding in the judgment of conviction |
its determination of the monthly cost of long-term physical |
health care.
|
|
(3) After a sentencing order has been entered, the |
court may from time to time, on the petition of either the |
defendant or the victim, or upon its own motion, enter an |
order for restitution for long-term physical care or modify |
the existing order for restitution for long-term physical |
care as to the amount of monthly payments. Any modification |
of the order shall be based only upon a substantial change |
of circumstances relating to the cost of long-term physical |
health care or the financial condition of either the |
defendant or the victim. The petition shall be filed as |
part of the original criminal docket.
|
(g) In addition to the sentences provided for in |
Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, |
11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13,
12-14, |
12-14.1, 12-15, and 12-16, and subdivision (a)(4) of |
Section 11-14.4, of the Criminal Code of 1961, the court |
may
order any person who is convicted of violating any of |
those Sections or who was charged with any of those |
offenses and which charge was reduced to another charge as |
a result of a plea agreement under subsection (d) of this |
Section to meet
all or any portion of the financial |
obligations of treatment, including but not
limited to |
medical, psychiatric, or rehabilitative treatment or |
psychological counseling,
prescribed for the victim or |
victims of the offense.
|
The payments shall be made by the defendant to the |
|
clerk of the circuit
court
and transmitted by the clerk to |
the appropriate person or agency as directed by
the court. |
Except as otherwise provided in subsection (f-1), the
order |
may require such payments to be made for a period not to
|
exceed 5 years after sentencing, not including periods of |
incarceration.
|
(h) The judge may enter an order of withholding to |
collect the amount
of restitution owed in accordance with |
Part 8 of Article XII of the Code of
Civil Procedure.
|
(i) A sentence of restitution may be modified or |
revoked by the court
if the offender commits another |
offense, or the offender fails to make
restitution as |
ordered by the court, but no sentence to make restitution
|
shall be revoked unless the court shall find that the |
offender has had the
financial ability to make restitution, |
and he has wilfully refused to do
so. When the offender's |
ability to pay restitution was established at the time
an |
order of restitution was entered or modified, or when the |
offender's ability
to pay was based on the offender's |
willingness to make restitution as part of a
plea agreement |
made at the time the order of restitution was entered or
|
modified, there is a rebuttable presumption that the facts |
and circumstances
considered by the court at the hearing at |
which the order of restitution was
entered or modified |
regarding the offender's ability or willingness to pay
|
restitution have not materially changed. If the court shall |
|
find that the
defendant has failed to make
restitution and |
that the failure is not wilful, the court may impose an
|
additional period of time within which to make restitution. |
The length of
the additional period shall not be more than |
2 years. The court shall
retain all of the incidents of the |
original sentence, including the
authority to modify or |
enlarge the conditions, and to revoke or further
modify the |
sentence if the conditions of payment are violated during |
the
additional period.
|
(j) The procedure upon the filing of a Petition to |
Revoke a sentence to
make restitution shall be the same as |
the procedures set forth in Section
5-6-4 of this Code |
governing violation, modification, or revocation of
|
Probation, of Conditional Discharge, or of Supervision.
|
(k) Nothing contained in this Section shall preclude |
the right of any
party to proceed in a civil action to |
recover for any damages incurred due
to the criminal |
misconduct of the defendant.
|
(l) Restitution ordered under this Section shall not be
|
subject to disbursement by the circuit clerk under Section |
27.5 of the
Clerks of Courts Act.
|
(m) A restitution order under this Section is a |
judgment lien in favor
of
the victim that:
|
(1) Attaches to the property of the person subject |
to the order;
|
(2) May be perfected in the same manner as provided |
|
in Part 3 of Article
9 of the Uniform Commercial Code;
|
(3) May be enforced to satisfy any payment that is |
delinquent under the
restitution order by the person in |
whose favor the order is issued or the
person's |
assignee; and
|
(4) Expires in the same manner as a judgment lien |
created in a civil
proceeding.
|
When a restitution order is issued under this Section, |
the issuing court
shall send a certified copy of the order |
to the clerk of the circuit court
in the county where the |
charge was filed. Upon receiving the order, the
clerk shall |
enter and index the order in the circuit court judgment |
docket.
|
(n) An order of restitution under this Section does not |
bar
a civil action for:
|
(1) Damages that the court did not require the |
person to pay to the
victim under the restitution order |
but arise from an injury or property
damages that is |
the basis of restitution ordered by the court; and
|
(2) Other damages suffered by the victim.
|
The restitution order is not discharged by the
completion |
of the sentence imposed for the offense.
|
A restitution order under this Section is not discharged by |
the
liquidation of a person's estate by a receiver. A |
restitution order under
this Section may be enforced in the |
same manner as judgment liens are
enforced under Article XII of |