State of Illinois
91st General Assembly
Legislation

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[ Engrossed ][ Senate Amendment 001 ]

91_HB3929

 
                                               LRB9111973RCmg

 1        AN  ACT  to  amend  the  Unified  Code  of Corrections by
 2    changing Section 5-5-6.

 3        Be it enacted by the People of  the  State  of  Illinois,
 4    represented in the General Assembly:

 5        Section 5.  The Unified Code of Corrections is amended by
 6    changing Section 5-5-6 as follows:

 7        (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
 8        Sec. 5-5-6.  In all convictions for offenses in violation
 9    of the Criminal Code of 1961 in which the person received any
10    injury  to  their  person or damage to their real or personal
11    property as a result of the criminal act  of  the  defendant,
12    the  court  shall  order  restitution  as  provided  in  this
13    Section.    In   all  other  cases,  except  cases  in  which
14    restitution is required under this Section, the court must at
15    the sentence hearing  determine  whether  restitution  is  an
16    appropriate   sentence   to  be  imposed  on  each  defendant
17    convicted of an offense.  If the  court  determines  that  an
18    order   directing   the   offender  to  make  restitution  is
19    appropriate,  the  offender  may   be   sentenced   to   make
20    restitution.      If   the  offender  is  sentenced  to  make
21    restitution the Court  shall  determine  the  restitution  as
22    hereinafter set forth:
23             (a)  At   the  sentence  hearing,  the  court  shall
24        determine whether the property may be restored in kind to
25        the possession of the owner or  the  person  entitled  to
26        possession thereof; or whether the defendant is possessed
27        of  sufficient  skill  to  repair  and  restore  property
28        damaged;  or  whether the defendant should be required to
29        make restitution in  cash,  for  out-of-pocket  expenses,
30        damages,   losses,   or   injuries  found  to  have  been
31        proximately caused by the conduct  of  the  defendant  or
 
                            -2-                LRB9111973RCmg
 1        another  for  whom  the  defendant is legally accountable
 2        under the provisions of Article V of the Criminal Code of
 3        1961.
 4             (b)  In fixing the amount of restitution to be  paid
 5        in  cash,  the  court  shall  allow  credit  for property
 6        returned in kind, for  property  damages  ordered  to  be
 7        repaired by the defendant, and for property ordered to be
 8        restored by the defendant; and after granting the credit,
 9        the court shall assess the actual out-of-pocket expenses,
10        losses,  damages,  and  injuries  suffered  by the victim
11        named in the charge and any other victims  who  may  also
12        have  suffered  out-of-pocket  expenses, losses, damages,
13        and injuries proximately  caused  by  the  same  criminal
14        conduct of the defendant, and insurance carriers who have
15        indemnified  the  named  victim  or other victims for the
16        out-of-pocket expenses,  losses,  damages,  or  injuries,
17        provided that in no event shall restitution be ordered to
18        be paid on account of pain and suffering.  If a defendant
19        is  placed  on supervision for, or convicted of, domestic
20        battery,  the  defendant  shall  be   required   to   pay
21        restitution to any domestic violence shelter in which the
22        victim  and  any  other family or household members lived
23        because of the  domestic  battery.   The  amount  of  the
24        restitution  shall  equal  the  actual  expenses  of  the
25        domestic  violence  shelter  in providing housing and any
26        other services for the victim and  any  other  family  or
27        household  members living at the shelter.  If a defendant
28        fails to pay restitution in the manner or within the time
29        period specified by the court, the  court  may  enter  an
30        order directing the sheriff to seize any real or personal
31        property  of  a  defendant  to  the  extent  necessary to
32        satisfy the order  of  restitution  and  dispose  of  the
33        property  by public sale.  All proceeds from such sale in
34        excess of the amount of restitution plus court costs  and
 
                            -3-                LRB9111973RCmg
 1        the  costs of the sheriff in conducting the sale shall be
 2        paid  to  the  defendant.   The  defendant  convicted  of
 3        domestic battery, if a person under 18 years of  age  who
 4        is the child of the offender or of the victim was present
 5        and  witnessed  the  domestic  battery  of the victim, is
 6        liable to pay restitution for the cost of any  counseling
 7        required for the child at the discretion of the court.
 8             (c)  In  cases  where  more  than  one  defendant is
 9        accountable for the same criminal conduct that results in
10        out-of-pocket expenses,  losses,  damages,  or  injuries,
11        each defendant shall be ordered to pay restitution in the
12        amount   of  the  total  actual  out-of-pocket  expenses,
13        losses, damages, or injuries to  the  victim  proximately
14        caused  by  the  conduct of all of the defendants who are
15        legally accountable for the offense.
16                  (1)  In no event shall the victim  be  entitled
17             to  recover  restitution  in  excess  of  the actual
18             out-of-pocket   expenses,   losses,   damages,    or
19             injuries,  proximately  caused by the conduct of all
20             of the defendants.
21                  (2)  As between the defendants, the  court  may
22             apportion   the   restitution  that  is  payable  in
23             proportion to each co-defendant's culpability in the
24             commission of the offense.
25                  (3)  In  the  absence  of  a   specific   order
26             apportioning  the  restitution, each defendant shall
27             bear his pro rata share of the restitution.
28                  (4)  As between the defendants, each  defendant
29             shall  be  entitled  to  a pro rata reduction in the
30             total restitution required to be paid to the  victim
31             for   amounts   of   restitution  actually  paid  by
32             co-defendants, and defendants who  shall  have  paid
33             more  than their pro rata share shall be entitled to
34             refunds to be computed by the  court  as  additional
 
                            -4-                LRB9111973RCmg
 1             amounts are paid by co-defendants.
 2             (d)  In  instances  where  a defendant has more than
 3        one criminal charge pending against him in a single case,
 4        or more than one case, and the defendant stands convicted
 5        of one or more charges, a plea  agreement  negotiated  by
 6        the  State's  Attorney and the defendants may require the
 7        defendant to make restitution to victims of charges  that
 8        have  been  dismissed or which it is contemplated will be
 9        dismissed under the terms  of  the  plea  agreement,  and
10        under  the  agreement, the court may impose a sentence of
11        restitution  on  the  charge  or  charges  of  which  the
12        defendant has  been  convicted  that  would  require  the
13        defendant   to  make  restitution  to  victims  of  other
14        offenses as provided in the plea agreement.
15             (e)  The court may require the  defendant  to  apply
16        the  balance  of  the  cash  bond, after payment of court
17        costs, and any fine that may be imposed to the payment of
18        restitution.
19             (f)  Taking into consideration the  ability  of  the
20        defendant  to  pay,  the  court  shall  determine whether
21        restitution shall be paid  in  a  single  payment  or  in
22        installments,  and  shall  fix  a  period  of time not in
23        excess   of   5   years,   not   including   periods   of
24        incarceration, within which payment of restitution is  to
25        be paid in full. Complete restitution shall be paid in as
26        short  a  time  period as possible. However, if the court
27        deems it necessary  and  in  the  best  interest  of  the
28        victim, the court may extend beyond 5 years the period of
29        time  within  which  the  payment of restitution is to be
30        paid. If the defendant is ordered to pay restitution  and
31        the  court  orders  that restitution is to be paid over a
32        period greater than 6 months, the court shall order  that
33        the  defendant make monthly payments; the court may waive
34        this requirement of monthly payments only if there  is  a
 
                            -5-                LRB9111973RCmg
 1        specific finding of good cause for waiver.
 2             (g)  The  court  shall,  after  determining that the
 3        defendant has the ability to pay, require  the  defendant
 4        to pay for the victim's counseling services if:
 5                  (1)  the  defendant was convicted of an offense
 6             under  Sections  11-19.2,  11-20.1,  12-13,   12-14,
 7             12-14.1,  12-15  or  12-16  of  the Criminal Code of
 8             1961, or was charged with such an  offense  and  the
 9             charge  was reduced to another charge as a result of
10             a  plea  agreement  under  subsection  (d)  of  this
11             Section, and
12                  (2)  the victim was under 18 years  of  age  at
13             the  time  the  offense  was  committed and requires
14             counseling as a result of the offense.
15             The payments shall be made by the defendant  to  the
16        clerk  of  the circuit court and transmitted by the clerk
17        to the appropriate person or agency as  directed  by  the
18        court.   The  order  may require such payments to be made
19        for a period not to exceed 5 years after sentencing,  not
20        including periods of incarceration.
21             (h)  The  judge may enter an order of withholding to
22        collect the amount of restitution owed in accordance with
23        Part 8 of Article XII of the Code of Civil Procedure.
24             (i)  A sentence of restitution may  be  modified  or
25        revoked  by  the  court  if  the offender commits another
26        offense, or the offender fails  to  make  restitution  as
27        ordered by the court, but no sentence to make restitution
28        shall  be  revoked  unless  the court shall find that the
29        offender  has  had  the   financial   ability   to   make
30        restitution,  and he has wilfully refused to do so.  When
31        the offender's ability to pay restitution was established
32        at the time  an  order  of  restitution  was  entered  or
33        modified, or when the offender's ability to pay was based
34        on the offender's willingness to make restitution as part
 
                            -6-                LRB9111973RCmg
 1        of  a  plea  agreement  made  at  the  time  the order of
 2        restitution  was  entered  or  modified,   there   is   a
 3        rebuttable  presumption  that the facts and circumstances
 4        considered by the court at the hearing at which the order
 5        of restitution was  entered  or  modified  regarding  the
 6        offender's ability or willingness to pay restitution have
 7        not materially changed.  If the court shall find that the
 8        defendant  has  failed  to  make restitution and that the
 9        failure is not wilful, the court may impose an additional
10        period of time within which  to  make  restitution.   The
11        length  of the additional period shall not be more than 2
12        years.  The court shall retain all of  the  incidents  of
13        the  original sentence, including the authority to modify
14        or enlarge the  conditions,  and  to  revoke  or  further
15        modify  the  sentence  if  the  conditions of payment are
16        violated during the additional period.
17             (j)  The procedure upon the filing of a Petition  to
18        Revoke  a  sentence to make restitution shall be the same
19        as the procedures set forth in Section 5-6-4 of this Code
20        governing  violation,  modification,  or  revocation   of
21        Probation, of Conditional Discharge, or of Supervision.
22             (k)  Nothing   contained   in   this  Section  shall
23        preclude the right of any party to  proceed  in  a  civil
24        action  to  recover  for  any damages incurred due to the
25        criminal misconduct of the defendant.
26             (l)  Restitution ordered under  this  Section  shall
27        not be subject to disbursement by the circuit clerk under
28        Section 27.5 of the Clerks of Courts Act.
29             (m)  A  restitution  order  under  this Section is a
30        judgment lien in favor of the victim that:
31                  (1)  Attaches to the  property  of  the  person
32             subject to the order;
33                  (2)  May  be  perfected  in  the same manner as
34             provided in Part 3  of  Article  9  of  the  Uniform
 
                            -7-                LRB9111973RCmg
 1             Commercial Code;
 2                  (3)  May  be  enforced  to  satisfy any payment
 3             that is delinquent under the  restitution  order  by
 4             the person in whose favor the order is issued or the
 5             person's assignee; and
 6                  (4)  Expires  in  the same manner as a judgment
 7             lien created in a civil proceeding.
 8             When  a  restitution  order  is  issued  under  this
 9        Section, the issuing court shall send a certified copy of
10        the order to the clerk of the circuit court in the county
11        where the charge was filed.  Upon  receiving  the  order,
12        the  clerk shall enter and index the order in the circuit
13        court judgment docket.   Amounts collected by the  clerk,
14        whether  in lump sum or installments, shall first be used
15        to satisfy the order  of  restitution  before  any  other
16        disbursements,  including those under Section 27.5 of the
17        Clerks of Courts Act.
18             (n)  An order of restitution under this Section does
19        not bar a civil action for:
20                  (1)  Damages that the court did not require the
21             person to pay to the victim  under  the  restitution
22             order  but  arise from an injury or property damages
23             that is the basis  of  restitution  ordered  by  the
24             court; and
25                  (2)  Other damages suffered by the victim.
26        The restitution order is not discharged by the completion
27    of the sentence imposed for the offense.
28        A  restitution order under this Section is not discharged
29    by the liquidation of a person's estate  by  a  receiver.   A
30    restitution  order  under this Section may be enforced in the
31    same manner as judgment liens are enforced under Article  XII
32    of the Code of Civil Procedure.
33        The  provisions  of  Section  2-1303 of the Code of Civil
34    Procedure, providing for  interest  on  judgments,  apply  to
 
                            -8-                LRB9111973RCmg
 1    judgments for restitution entered under this Section.
 2    (Source: P.A.  90-465,  eff.  1-1-98;  91-153,  eff.  1-1-00;
 3    91-262, eff. 1-1-00; 91-420, eff. 1-1-00; revised 9-30-99.)

 4        Section  99.  Effective date.  This Act takes effect upon
 5    becoming law.

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