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| [ Introduced ] | [ Enrolled ] | [ Senate Amendment 001 ] |
91_SB0080eng SB80 Engrossed LRB9101960RCcs 1 AN ACT in relation to domestic battery. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Criminal Code of 1961 is amended by 5 changing Section 12-3.2 as follows: 6 (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2) 7 Sec. 12-3.2. Domestic Battery. 8 (a) A person commits domestic battery if he 9 intentionally or knowingly without legal justification by any 10 means: 11 (1) Causes bodily harm to any family or household 12 member as defined in subsection (3) of Section 112A-3 of 13 the Code of Criminal Procedure of 1963, as amended; 14 (2) Makes physical contact of an insulting or 15 provoking nature with any family or household member as 16 defined in subsection (3) of Section 112A-3 of the Code 17 of Criminal Procedure of 1963, as amended. 18 (b) Sentence. Domestic battery is a Class A 19 Misdemeanor. Domestic battery is a Class 4 felony if the 20 defendant has any prior conviction under this Code for 21 domestic battery (Section 12-3.2) or violation of an order of 22 protection (Section 12-30). In addition to any other 23 sentencing alternatives, for any second conviction of 24 violating this Section within 5 years of a previous 25 conviction for violating this Section, the offender shall be 26 mandatorily sentenced to a minimum of 48 consecutive hours of 27 imprisonment. The imprisonment shall not be subject to 28 suspension, nor shall the person be eligible for probation in 29 order to reduce the sentence. 30 (c) For any conviction for domestic battery, if a person 31 under 18 years of age who is the child of the offender or of SB80 Engrossed -2- LRB9101960RCcs 1 the victim was present and witnessed the domestic battery of 2 the victim, the defendant is liable for the cost of any 3 counseling required for the child at the discretion of the 4 court in accordance with subsection (b) of Section 5-5-6 of 5 the Unified Code of Corrections. 6 (Source: P.A. 90-734, eff. 1-1-99.) 7 Section 10. The Unified Code of Corrections is amended 8 by changing Section 5-5-6 as follows: 9 (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6) 10 Sec. 5-5-6. In all convictions for offenses in violation 11 of the Criminal Code of 1961 in which the person received any 12 injury to their person or damage to their real or personal 13 property as a result of the criminal act of the defendant, 14 the court shall order restitution as provided in this 15 Section. When the offender is sentenced to make restitution 16 the Court shall determine the restitution as hereinafter set 17 forth: 18 (a) At the sentence hearing, the court shall 19 determine whether the property may be restored in kind to 20 the possession of the owner or the person entitled to 21 possession thereof; or whether the defendant is possessed 22 of sufficient skill to repair and restore property 23 damaged; or whether the defendant should be required to 24 make restitution in cash, for out-of-pocket expenses, 25 damages, losses, or injuries found to have been 26 proximately caused by the conduct of the defendant or 27 another for whom the defendant is legally accountable 28 under the provisions of Article V of the Criminal Code of 29 1961. 30 (b) In fixing the amount of restitution to be paid 31 in cash, the court shall allow credit for property 32 returned in kind, for property damages ordered to be SB80 Engrossed -3- LRB9101960RCcs 1 repaired by the defendant, and for property ordered to be 2 restored by the defendant; and after granting the credit, 3 the court shall assess the actual out-of-pocket expenses, 4 losses, damages, and injuries suffered by the victim 5 named in the charge and any other victims who may also 6 have suffered out-of-pocket expenses, losses, damages, 7 and injuries proximately caused by the same criminal 8 conduct of the defendant, and insurance carriers who have 9 indemnified the named victim or other victims for the 10 out-of-pocket expenses, losses, damages, or injuries, 11 provided that in no event shall restitution be ordered to 12 be paid on account of pain and suffering. If a defendant 13 is placed on supervision for, or convicted of, domestic 14 battery, the defendant shall be required to pay 15 restitution to any domestic violence shelter in which the 16 victim and any other family or household members lived 17 because of the domestic battery. The amount of the 18 restitution shall equal the actual expenses of the 19 domestic violence shelter in providing housing and any 20 other services for the victim and any other family or 21 household members living at the shelter. If a defendant 22 fails to pay restitution in the manner or within the time 23 period specified by the court, the court may enter an 24 order directing the sheriff to seize any real or personal 25 property of a defendant to the extent necessary to 26 satisfy the order of restitution and dispose of the 27 property by public sale. All proceeds from such sale in 28 excess of the amount of restitution plus court costs and 29 the costs of the sheriff in conducting the sale shall be 30 paid to the defendant. The defendant convicted of 31 domestic battery, if a person under 18 years of age who 32 is the child of the offender or of the victim was present 33 and witnessed the domestic battery of the victim, is 34 liable to pay restitution for the cost of any counseling SB80 Engrossed -4- LRB9101960RCcs 1 required for the child at the discretion of the court. 2 (c) In cases where more than one defendant is 3 accountable for the same criminal conduct that results in 4 out-of-pocket expenses, losses, damages, or injuries, 5 each defendant shall be ordered to pay restitution in the 6 amount of the total actual out-of-pocket expenses, 7 losses, damages, or injuries to the victim proximately 8 caused by the conduct of all of the defendants who are 9 legally accountable for the offense. 10 (1) In no event shall the victim be entitled 11 to recover restitution in excess of the actual 12 out-of-pocket expenses, losses, damages, or 13 injuries, proximately caused by the conduct of all 14 of the defendants. 15 (2) As between the defendants, the court may 16 apportion the restitution that is payable in 17 proportion to each co-defendant's culpability in the 18 commission of the offense. 19 (3) In the absence of a specific order 20 apportioning the restitution, each defendant shall 21 bear his pro rata share of the restitution. 22 (4) As between the defendants, each defendant 23 shall be entitled to a pro rata reduction in the 24 total restitution required to be paid to the victim 25 for amounts of restitution actually paid by 26 co-defendants, and defendants who shall have paid 27 more than their pro rata share shall be entitled to 28 refunds to be computed by the court as additional 29 amounts are paid by co-defendants. 30 (d) In instances where a defendant has more than 31 one criminal charge pending against him in a single case, 32 or more than one case, and the defendant stands convicted 33 of one or more charges, a plea agreement negotiated by 34 the State's Attorney and the defendants may require the SB80 Engrossed -5- LRB9101960RCcs 1 defendant to make restitution to victims of charges that 2 have been dismissed or which it is contemplated will be 3 dismissed under the terms of the plea agreement, and 4 under the agreement, the court may impose a sentence of 5 restitution on the charge or charges of which the 6 defendant has been convicted that would require the 7 defendant to make restitution to victims of other 8 offenses as provided in the plea agreement. 9 (e) The court may require the defendant to apply 10 the balance of the cash bond, after payment of court 11 costs, and any fine that may be imposed to the payment of 12 restitution. 13 (f) Taking into consideration the ability of the 14 defendant to pay, the court shall determine whether 15 restitution shall be paid in a single payment or in 16 installments, and shall fix a period of time not in 17 excess of 5 years, not including periods of 18 incarceration, within which payment of restitution is to 19 be paid in full. However, if the court deems it necessary 20 and in the best interest of the victim, the court may 21 extend beyond 5 years the period of time within which the 22 payment of restitution is to be paid. If the defendant is 23 ordered to pay restitution and the court orders that 24 restitution is to be paid over a period greater than 6 25 months, the court shall order that the defendant make 26 monthly payments; the court may waive this requirement of 27 monthly payments only if there is a specific finding of 28 good cause for waiver. 29 (g) The court shall, after determining that the 30 defendant has the ability to pay, require the defendant 31 to pay for the victim's counseling services if: 32 (1) the defendant was convicted of an offense 33 under Sections 11-19.2, 11-20.1, 12-13, 12-14, 34 12-14.1, 12-15 or 12-16 of the Criminal Code of SB80 Engrossed -6- LRB9101960RCcs 1 1961, or was charged with such an offense and the 2 charge was reduced to another charge as a result of 3 a plea agreement under subsection (d) of this 4 Section, and 5 (2) the victim was under 18 years of age at 6 the time the offense was committed and requires 7 counseling as a result of the offense. 8 The payments shall be made by the defendant to the 9 clerk of the circuit court and transmitted by the clerk 10 to the appropriate person or agency as directed by the 11 court. The order may require such payments to be made 12 for a period not to exceed 5 years after sentencing, not 13 including periods of incarceration. 14 (h) The judge may enter an order of withholding to 15 collect the amount of restitution owed in accordance with 16 Part 8 of Article XII of the Code of Civil Procedure. 17 (i) A sentence of restitution may be modified or 18 revoked by the court if the offender commits another 19 offense, or the offender fails to make restitution as 20 ordered by the court, but no sentence to make restitution 21 shall be revoked unless the court shall find that the 22 offender has had the financial ability to make 23 restitution, and he has wilfully refused to do so. If 24 the court shall find that the defendant has failed to 25 make restitution and that the failure is not wilful, the 26 court may impose an additional period of time within 27 which to make restitution. The length of the additional 28 period shall not be more than 2 years. The court shall 29 retain all of the incidents of the original sentence, 30 including the authority to modify or enlarge the 31 conditions, and to revoke or further modify the sentence 32 if the conditions of payment are violated during the 33 additional period. 34 (j) The procedure upon the filing of a Petition to SB80 Engrossed -7- LRB9101960RCcs 1 Revoke a sentence to make restitution shall be the same 2 as the procedures set forth in Section 5-6-4 of this Code 3 governing violation, modification, or revocation of 4 Probation, of Conditional Discharge, or of Supervision. 5 (k) Nothing contained in this Section shall 6 preclude the right of any party to proceed in a civil 7 action to recover for any damages incurred due to the 8 criminal misconduct of the defendant. 9 (l) Restitution ordered under this Section shall 10 not be subject to disbursement by the circuit clerk under 11 Section 27.5 of the Clerks of Courts Act. 12 (m) A restitution order under this Section is a 13 judgment lien in favor of the victim that: 14 (1) Attaches to the property of the person 15 subject to the order; 16 (2) May be perfected in the same manner as 17 provided in Part 3 of Article 9 of the Uniform 18 Commercial Code; 19 (3) May be enforced to satisfy any payment 20 that is delinquent under the restitution order by 21 the person in whose favor the order is issued or the 22 person's assignee; and 23 (4) Expires in the same manner as a judgment 24 lien created in a civil proceeding. 25 When a restitution order is issued under this 26 Section, the issuing court shall send a certified copy of 27 the order to the clerk of the circuit court in the county 28 where the charge was filed. Upon receiving the order, 29 the clerk shall enter and index the order in the circuit 30 court judgment docket. 31 (n) An order of restitution under this Section does 32 not bar a civil action for: 33 (1) Damages that the court did not require the 34 person to pay to the victim under the restitution SB80 Engrossed -8- LRB9101960RCcs 1 order but arise from an injury or property damages 2 that is the basis of restitution ordered by the 3 court; and 4 (2) Other damages suffered by the victim. 5 The restitution order is not discharged by the completion 6 of the sentence imposed for the offense. 7 A restitution order under this Section is not discharged 8 by the liquidation of a person's estate by a receiver. A 9 restitution order under this Section may be enforced in the 10 same manner as judgment liens are enforced under Article XII 11 of the Code of Civil Procedure. 12 The provisions of Section 2-1303 of the Code of Civil 13 Procedure, providing for interest on judgments, apply to 14 judgments for restitution entered under this Section. 15 (Source: P.A. 89-198, eff. 7-21-95; 89-203, eff. 7-21-95; 16 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-689, eff. 17 12-31-96; 90-465, eff. 1-1-98.)