Bill Text: IL HB1689 | 2011-2012 | 97th General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Amends the Criminal Code of 1961. Provides that financial exploitation of an elderly person or a person with a disability is a Class 1 felony if the value of the property is $50,000 (rather than $100,000) or more but less than $100,000 or if the elderly person is over 70 years of age and the value of the property is $15,000 or more but less than $50,000 or if the elderly person is 80 years of age or older and the value of the property is $5,000 or more but less than $25,000 and a Class X felony if the value of the property is $100,000 or more or if the elderly person is over 70 years of age and the value of the property is $50,000 or more or if the elderly person is 80 years of age or older and the value of the property is $25,000 or more.
Spectrum: Moderate Partisan Bill (Democrat 28-6)
Status: (Passed) 2011-08-22 - Public Act . . . . . . . . . 97-0482 [HB1689 Detail]
Download: Illinois-2011-HB1689-Amended.html
Bill Title: Amends the Criminal Code of 1961. Provides that financial exploitation of an elderly person or a person with a disability is a Class 1 felony if the value of the property is $50,000 (rather than $100,000) or more but less than $100,000 or if the elderly person is over 70 years of age and the value of the property is $15,000 or more but less than $50,000 or if the elderly person is 80 years of age or older and the value of the property is $5,000 or more but less than $25,000 and a Class X felony if the value of the property is $100,000 or more or if the elderly person is over 70 years of age and the value of the property is $50,000 or more or if the elderly person is 80 years of age or older and the value of the property is $25,000 or more.
Spectrum: Moderate Partisan Bill (Democrat 28-6)
Status: (Passed) 2011-08-22 - Public Act . . . . . . . . . 97-0482 [HB1689 Detail]
Download: Illinois-2011-HB1689-Amended.html
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1 | AMENDMENT TO HOUSE BILL 1689
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2 | AMENDMENT NO. ______. Amend House Bill 1689, AS AMENDED, by | ||||||
3 | replacing everything after the enacting clause with the | ||||||
4 | following:
| ||||||
5 | "Section 5. The Criminal Code of 1961 is amended by | ||||||
6 | changing Section 17-56 as follows:
| ||||||
7 | (720 ILCS 5/17-56) (was 720 ILCS 5/16-1.3)
| ||||||
8 | (This Section may contain text from a Public Act with a | ||||||
9 | delayed effective date )
| ||||||
10 | Sec. 17-56. Financial exploitation of an elderly person or | ||||||
11 | a
person with a disability.
| ||||||
12 | (a) A person commits financial exploitation of an elderly
| ||||||
13 | person or a person with a disability when he or she stands in a
| ||||||
14 | position of trust
or confidence with the
elderly person or a | ||||||
15 | person with a disability
and he
or she knowingly and by
| ||||||
16 | deception or
intimidation obtains control over the property of |
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| |||||||
1 | an elderly person or
a person
with a disability
or illegally | ||||||
2 | uses the assets or resources of an elderly person or a
person | ||||||
3 | with a disability.
| ||||||
4 | (b) Sentence. Financial exploitation of an elderly person | ||||||
5 | or a person
with a
disability is: (1) a Class 4
felony if the | ||||||
6 | value of the property is $300 or less, (2) a Class 3 felony if
| ||||||
7 | the value of the property is more than $300 but less than | ||||||
8 | $5,000, (3) a Class 2
felony if the value of the property is | ||||||
9 | $5,000 or more but less than
$50,000 $100,000 , and (4) a Class | ||||||
10 | 1 felony if the value of the property is $50,000 $100,000 or | ||||||
11 | more
or if the elderly person is over 70 years of age and the | ||||||
12 | value of the
property is $15,000 or more or if the elderly | ||||||
13 | person is 80 years of age or
older and the value of the | ||||||
14 | property is $5,000 or more.
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15 | (c) For purposes of this Section:
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16 | (1) "Elderly person" means a person 60
years of age or | ||||||
17 | older.
| ||||||
18 | (2) "Person with a disability" means a person who
| ||||||
19 | suffers from a physical or mental impairment resulting from
| ||||||
20 | disease, injury, functional disorder or congenital | ||||||
21 | condition that impairs the
individual's mental or physical | ||||||
22 | ability to independently manage his or her
property or | ||||||
23 | financial resources, or both.
| ||||||
24 | (3) "Intimidation" means the communication to an | ||||||
25 | elderly person or a
person with a disability that he or she | ||||||
26 | shall be deprived of food and
nutrition,
shelter, |
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1 | prescribed
medication or medical care and treatment.
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2 | (4) "Deception" means, in addition to its meaning as | ||||||
3 | defined in Section
15-4 of this Code,
a misrepresentation | ||||||
4 | or concealment of material fact
relating to the terms of a | ||||||
5 | contract or agreement entered into with the
elderly person | ||||||
6 | or person with a disability or to the
existing or
| ||||||
7 | pre-existing condition of
any of the property involved in | ||||||
8 | such contract or agreement; or the use or
employment of any | ||||||
9 | misrepresentation, false pretense or false promise in
| ||||||
10 | order to induce, encourage or solicit the elderly person or
| ||||||
11 | person with
a disability to
enter into a contract or | ||||||
12 | agreement.
| ||||||
13 | The illegal use of the assets or resources of an
elderly | ||||||
14 | person or a person with a disability includes, but is not | ||||||
15 | limited
to, the misappropriation of those assets or resources | ||||||
16 | by undue influence,
breach of a fiduciary relationship, fraud, | ||||||
17 | deception, extortion, or
use of the assets or resources | ||||||
18 | contrary to law. | ||||||
19 | A person stands in a position of
trust and confidence with | ||||||
20 | an elderly person or person with a
disability when he (i) is a
| ||||||
21 | parent, spouse, adult child or other relative by blood or | ||||||
22 | marriage of the
elderly person or person with a disability, | ||||||
23 | (ii) is a joint
tenant or
tenant in common with
the elderly | ||||||
24 | person or person with a disability, (iii) has
a legal or
| ||||||
25 | fiduciary relationship
with the elderly person or person with a | ||||||
26 | disability, or (iv) is a financial
planning or investment |
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1 | professional.
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2 | (d) Limitations. Nothing in this Section shall be construed | ||||||
3 | to limit the remedies
available to the victim under the | ||||||
4 | Illinois Domestic Violence Act of 1986.
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5 | (e) Good faith efforts. Nothing in this Section shall be | ||||||
6 | construed to impose criminal
liability on a person who has made | ||||||
7 | a good faith effort to assist the
elderly person or person with | ||||||
8 | a disability in the
management of his or her
property, but | ||||||
9 | through
no fault of his or her own has been unable to provide | ||||||
10 | such assistance.
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11 | (f) Not a defense. It shall not be a defense to financial | ||||||
12 | exploitation of an elderly
person or person with a disability | ||||||
13 | that the accused reasonably believed
that the victim was
not an | ||||||
14 | elderly person or person with a disability.
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15 | (g) Civil Liability. A person who is charged by information | ||||||
16 | or
indictment with the offense of financial exploitation of an | ||||||
17 | elderly person
or person with a disability and who fails or | ||||||
18 | refuses to return
the victim's property
within 60 days | ||||||
19 | following a written demand from the victim or the victim's
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20 | legal representative shall be liable to the victim or to the | ||||||
21 | estate of the
victim in damages of treble the amount of the | ||||||
22 | value of the property
obtained, plus reasonable attorney fees | ||||||
23 | and court costs. The burden of
proof that the defendant | ||||||
24 | unlawfully obtained the victim's property shall be
by a | ||||||
25 | preponderance of the evidence. This subsection shall be | ||||||
26 | operative
whether or not the defendant has been convicted of |
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1 | the offense.
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2 | (Source: P.A. 95-798, eff. 1-1-09; 96-1551, eff. 7-1-11.)
| ||||||
3 | Section 10. The Unified Code of Corrections is amended by | ||||||
4 | changing Section 5-5-6 as follows:
| ||||||
5 | (730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
| ||||||
6 | (Text of Section after amendment by P.A. 96-1551 )
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7 | Sec. 5-5-6. In all convictions for offenses in violation of | ||||||
8 | the Criminal
Code of 1961 or of Section 11-501 of the Illinois | ||||||
9 | Vehicle Code in which the person received any injury to his or | ||||||
10 | her person or damage
to his or her real or personal property as | ||||||
11 | a result of the criminal act of the
defendant, the court shall | ||||||
12 | order restitution as provided in this Section. In
all other | ||||||
13 | cases, except cases in which restitution is required under this
| ||||||
14 | Section, the court must at the sentence hearing determine | ||||||
15 | whether restitution
is an appropriate sentence to be imposed on | ||||||
16 | each defendant convicted of an
offense. If the court determines | ||||||
17 | that an order directing the offender to make
restitution is | ||||||
18 | appropriate, the offender may be sentenced to make restitution.
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19 | The court may consider restitution an appropriate sentence to | ||||||
20 | be imposed on each defendant convicted of an offense in | ||||||
21 | addition to a sentence of imprisonment. The sentence of the | ||||||
22 | defendant to a term of imprisonment is not a mitigating factor | ||||||
23 | that prevents the court from ordering the defendant to pay | ||||||
24 | restitution. If
the offender is sentenced to make restitution |
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1 | the Court shall determine the
restitution as hereinafter set | ||||||
2 | forth:
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3 | (a) At the sentence hearing, the court shall determine | ||||||
4 | whether the
property
may be restored in kind to the | ||||||
5 | possession of the owner or the person entitled
to | ||||||
6 | possession thereof; or whether the defendant is possessed | ||||||
7 | of sufficient
skill to repair and restore property damaged; | ||||||
8 | or whether the defendant should
be required to make | ||||||
9 | restitution in cash, for out-of-pocket expenses, damages,
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10 | losses, or injuries found to have been proximately caused | ||||||
11 | by the conduct
of the defendant or another for whom the | ||||||
12 | defendant is legally accountable
under the provisions of | ||||||
13 | Article V of the Criminal Code of 1961.
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14 | (b) In fixing the amount of restitution to be paid in | ||||||
15 | cash, the court
shall allow credit for property returned in | ||||||
16 | kind, for property damages ordered
to be repaired by the | ||||||
17 | defendant, and for property ordered to be restored
by the | ||||||
18 | defendant; and after granting the credit, the court shall | ||||||
19 | assess
the actual out-of-pocket expenses, losses, damages, | ||||||
20 | and injuries suffered
by the victim named in the charge and | ||||||
21 | any other victims who may also have
suffered out-of-pocket | ||||||
22 | expenses, losses, damages, and injuries proximately
caused | ||||||
23 | by the same criminal conduct of the defendant, and | ||||||
24 | insurance
carriers who have indemnified the named victim or | ||||||
25 | other victims for the
out-of-pocket expenses, losses, | ||||||
26 | damages, or injuries, provided that in no
event shall |
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1 | restitution be ordered to be paid on account of pain and
| ||||||
2 | suffering. If a defendant is placed on supervision for, or | ||||||
3 | convicted of,
domestic battery, the defendant shall be | ||||||
4 | required to pay restitution to any
domestic violence | ||||||
5 | shelter in which the victim and any other family or | ||||||
6 | household
members lived because of the domestic battery. | ||||||
7 | The amount of the restitution
shall equal the actual | ||||||
8 | expenses of the domestic violence shelter in providing
| ||||||
9 | housing and any other services for the victim and any other | ||||||
10 | family or household
members living at the shelter. If a | ||||||
11 | defendant fails to pay restitution in
the manner or within
| ||||||
12 | the time period specified by the court, the court may enter | ||||||
13 | an order
directing the sheriff to seize any real or | ||||||
14 | personal property of a defendant
to the extent necessary to | ||||||
15 | satisfy the order of restitution and dispose of
the | ||||||
16 | property by public sale. All proceeds from such sale in | ||||||
17 | excess of the
amount of restitution plus court costs and | ||||||
18 | the costs of the sheriff in
conducting the sale shall be | ||||||
19 | paid to the defendant. The defendant convicted of
domestic | ||||||
20 | battery, if a person under 18 years of age was present and | ||||||
21 | witnessed the domestic battery of the
victim, is liable to | ||||||
22 | pay restitution for the cost of any counseling required
for
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23 | the child at the discretion of the court.
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24 | (c) In cases where more than one defendant is | ||||||
25 | accountable for the same
criminal conduct that results in | ||||||
26 | out-of-pocket expenses, losses, damages,
or injuries, each |
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1 | defendant shall be ordered to pay restitution in the amount
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2 | of the total actual out-of-pocket expenses, losses, | ||||||
3 | damages, or injuries
to the victim proximately caused by | ||||||
4 | the conduct of all of the defendants
who are legally | ||||||
5 | accountable for the offense.
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6 | (1) In no event shall the victim be entitled to | ||||||
7 | recover restitution in
excess of the actual | ||||||
8 | out-of-pocket expenses, losses, damages, or injuries,
| ||||||
9 | proximately caused by the conduct of all of the | ||||||
10 | defendants.
| ||||||
11 | (2) As between the defendants, the court may | ||||||
12 | apportion the restitution
that is payable in | ||||||
13 | proportion to each co-defendant's culpability in the
| ||||||
14 | commission of the offense.
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15 | (3) In the absence of a specific order apportioning | ||||||
16 | the restitution,
each defendant shall bear his pro rata | ||||||
17 | share of the restitution.
| ||||||
18 | (4) As between the defendants, each defendant | ||||||
19 | shall be entitled to a pro
rata reduction in the total | ||||||
20 | restitution required to be paid to the victim
for | ||||||
21 | amounts of restitution actually paid by co-defendants, | ||||||
22 | and defendants
who shall have paid more than their pro | ||||||
23 | rata share shall be entitled to
refunds to be computed | ||||||
24 | by the court as additional amounts are
paid by | ||||||
25 | co-defendants.
| ||||||
26 | (d) In instances where a defendant has more than one |
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1 | criminal charge
pending
against him in a single case, or | ||||||
2 | more than one case, and the defendant stands
convicted of | ||||||
3 | one or more charges, a plea agreement negotiated by the | ||||||
4 | State's
Attorney and the defendants may require the | ||||||
5 | defendant to make restitution
to victims of charges that | ||||||
6 | have been dismissed or which it is contemplated
will be | ||||||
7 | dismissed under the terms of the plea agreement, and under | ||||||
8 | the
agreement, the court may impose a sentence of | ||||||
9 | restitution on the charge
or charges of which the defendant | ||||||
10 | has been convicted that would require
the defendant to make | ||||||
11 | restitution to victims of other offenses as provided
in the | ||||||
12 | plea agreement.
| ||||||
13 | (e) The court may require the defendant to apply the | ||||||
14 | balance of the cash
bond, after payment of court costs, and | ||||||
15 | any fine that may be imposed to
the payment of restitution.
| ||||||
16 | (f) Taking into consideration the ability of the | ||||||
17 | defendant to pay, including any real or personal property | ||||||
18 | or any other assets of the defendant,
the court shall | ||||||
19 | determine whether restitution shall be paid in a single
| ||||||
20 | payment or in installments, and shall fix a period of time | ||||||
21 | not in excess
of 5 years , except for violations of Sections | ||||||
22 | 16-1.3 and 17-56 of the Criminal Code of 1961, or the | ||||||
23 | period of time specified in subsection (f-1), not including | ||||||
24 | periods of incarceration, within which payment of
| ||||||
25 | restitution is to be paid in full.
Complete restitution | ||||||
26 | shall be paid in as short a time period as possible.
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1 | However, if the court deems it necessary and in the best | ||||||
2 | interest of the
victim, the court may extend beyond 5 years | ||||||
3 | the period of time within which the
payment of restitution | ||||||
4 | is to be paid.
If the defendant is ordered to pay | ||||||
5 | restitution and the court orders that
restitution is to be | ||||||
6 | paid over a period greater than 6 months, the court
shall | ||||||
7 | order that the defendant make monthly payments; the court | ||||||
8 | may waive
this requirement of monthly payments only if | ||||||
9 | there is a specific finding of
good cause for waiver.
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10 | (f-1)(1) In addition to any other penalty prescribed by | ||||||
11 | law and any restitution ordered under this Section that did | ||||||
12 | not include long-term physical health care costs, the court | ||||||
13 | may, upon conviction of any misdemeanor or felony, order a | ||||||
14 | defendant to pay restitution to a victim in accordance with | ||||||
15 | the provisions of this subsection (f-1) if the victim has | ||||||
16 | suffered physical injury as a result of the offense that is | ||||||
17 | reasonably probable to require or has required long-term | ||||||
18 | physical health care for more than 3 months. As used in | ||||||
19 | this subsection (f-1) "long-term physical health care" | ||||||
20 | includes mental health care.
| ||||||
21 | (2) The victim's estimate of long-term physical health | ||||||
22 | care costs may be made as part of a victim impact statement | ||||||
23 | under Section 6 of the Rights of Crime Victims and | ||||||
24 | Witnesses Act or made separately. The court shall enter the | ||||||
25 | long-term physical health care restitution order at the | ||||||
26 | time of sentencing. An order of restitution made under this |
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| |||||||
1 | subsection (f-1) shall fix a monthly amount to be paid by | ||||||
2 | the defendant for as long as long-term physical health care | ||||||
3 | of the victim is required as a result of the offense. The | ||||||
4 | order may exceed the length of any sentence imposed upon | ||||||
5 | the defendant for the criminal activity. The court shall | ||||||
6 | include as a special finding in the judgment of conviction | ||||||
7 | its determination of the monthly cost of long-term physical | ||||||
8 | health care.
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9 | (3) After a sentencing order has been entered, the | ||||||
10 | court may from time to time, on the petition of either the | ||||||
11 | defendant or the victim, or upon its own motion, enter an | ||||||
12 | order for restitution for long-term physical care or modify | ||||||
13 | the existing order for restitution for long-term physical | ||||||
14 | care as to the amount of monthly payments. Any modification | ||||||
15 | of the order shall be based only upon a substantial change | ||||||
16 | of circumstances relating to the cost of long-term physical | ||||||
17 | health care or the financial condition of either the | ||||||
18 | defendant or the victim. The petition shall be filed as | ||||||
19 | part of the original criminal docket.
| ||||||
20 | (g) In addition to the sentences provided for in | ||||||
21 | Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | ||||||
22 | 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13,
12-14, | ||||||
23 | 12-14.1, 12-15, and 12-16, and subdivision (a)(4) of | ||||||
24 | Section 11-14.4, of the Criminal Code of 1961, the court | ||||||
25 | may
order any person who is convicted of violating any of | ||||||
26 | those Sections or who was charged with any of those |
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| |||||||
1 | offenses and which charge was reduced to another charge as | ||||||
2 | a result of a plea agreement under subsection (d) of this | ||||||
3 | Section to meet
all or any portion of the financial | ||||||
4 | obligations of treatment, including but not
limited to | ||||||
5 | medical, psychiatric, or rehabilitative treatment or | ||||||
6 | psychological counseling,
prescribed for the victim or | ||||||
7 | victims of the offense.
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8 | The payments shall be made by the defendant to the | ||||||
9 | clerk of the circuit
court
and transmitted by the clerk to | ||||||
10 | the appropriate person or agency as directed by
the court. | ||||||
11 | Except as otherwise provided in subsection (f-1), the
order | ||||||
12 | may require such payments to be made for a period not to
| ||||||
13 | exceed 5 years after sentencing, not including periods of | ||||||
14 | incarceration.
| ||||||
15 | (h) The judge may enter an order of withholding to | ||||||
16 | collect the amount
of restitution owed in accordance with | ||||||
17 | Part 8 of Article XII of the Code of
Civil Procedure.
| ||||||
18 | (i) A sentence of restitution may be modified or | ||||||
19 | revoked by the court
if the offender commits another | ||||||
20 | offense, or the offender fails to make
restitution as | ||||||
21 | ordered by the court, but no sentence to make restitution
| ||||||
22 | shall be revoked unless the court shall find that the | ||||||
23 | offender has had the
financial ability to make restitution, | ||||||
24 | and he has wilfully refused to do
so. When the offender's | ||||||
25 | ability to pay restitution was established at the time
an | ||||||
26 | order of restitution was entered or modified, or when the |
| |||||||
| |||||||
1 | offender's ability
to pay was based on the offender's | ||||||
2 | willingness to make restitution as part of a
plea agreement | ||||||
3 | made at the time the order of restitution was entered or
| ||||||
4 | modified, there is a rebuttable presumption that the facts | ||||||
5 | and circumstances
considered by the court at the hearing at | ||||||
6 | which the order of restitution was
entered or modified | ||||||
7 | regarding the offender's ability or willingness to pay
| ||||||
8 | restitution have not materially changed. If the court shall | ||||||
9 | find that the
defendant has failed to make
restitution and | ||||||
10 | that the failure is not wilful, the court may impose an
| ||||||
11 | additional period of time within which to make restitution. | ||||||
12 | The length of
the additional period shall not be more than | ||||||
13 | 2 years. The court shall
retain all of the incidents of the | ||||||
14 | original sentence, including the
authority to modify or | ||||||
15 | enlarge the conditions, and to revoke or further
modify the | ||||||
16 | sentence if the conditions of payment are violated during | ||||||
17 | the
additional period.
| ||||||
18 | (j) The procedure upon the filing of a Petition to | ||||||
19 | Revoke a sentence to
make restitution shall be the same as | ||||||
20 | the procedures set forth in Section
5-6-4 of this Code | ||||||
21 | governing violation, modification, or revocation of
| ||||||
22 | Probation, of Conditional Discharge, or of Supervision.
| ||||||
23 | (k) Nothing contained in this Section shall preclude | ||||||
24 | the right of any
party to proceed in a civil action to | ||||||
25 | recover for any damages incurred due
to the criminal | ||||||
26 | misconduct of the defendant.
|
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1 | (l) Restitution ordered under this Section shall not be
| ||||||
2 | subject to disbursement by the circuit clerk under Section | ||||||
3 | 27.5 of the
Clerks of Courts Act.
| ||||||
4 | (m) A restitution order under this Section is a | ||||||
5 | judgment lien in favor
of
the victim that:
| ||||||
6 | (1) Attaches to the property of the person subject | ||||||
7 | to the order;
| ||||||
8 | (2) May be perfected in the same manner as provided | ||||||
9 | in Part 3 of Article
9 of the Uniform Commercial Code;
| ||||||
10 | (3) May be enforced to satisfy any payment that is | ||||||
11 | delinquent under the
restitution order by the person in | ||||||
12 | whose favor the order is issued or the
person's | ||||||
13 | assignee; and
| ||||||
14 | (4) Expires in the same manner as a judgment lien | ||||||
15 | created in a civil
proceeding.
| ||||||
16 | When a restitution order is issued under this Section, | ||||||
17 | the issuing court
shall send a certified copy of the order | ||||||
18 | to the clerk of the circuit court
in the county where the | ||||||
19 | charge was filed. Upon receiving the order, the
clerk shall | ||||||
20 | enter and index the order in the circuit court judgment | ||||||
21 | docket.
| ||||||
22 | (n) An order of restitution under this Section does not | ||||||
23 | bar
a civil action for:
| ||||||
24 | (1) Damages that the court did not require the | ||||||
25 | person to pay to the
victim under the restitution order | ||||||
26 | but arise from an injury or property
damages that is |
| |||||||
| |||||||
1 | the basis of restitution ordered by the court; and
| ||||||
2 | (2) Other damages suffered by the victim.
| ||||||
3 | The restitution order is not discharged by the
completion | ||||||
4 | of the sentence imposed for the offense.
| ||||||
5 | A restitution order under this Section is not discharged by | ||||||
6 | the
liquidation of a person's estate by a receiver. A | ||||||
7 | restitution order under
this Section may be enforced in the | ||||||
8 | same manner as judgment liens are
enforced under Article XII of | ||||||
9 | the Code of Civil Procedure.
| ||||||
10 | The provisions of Section 2-1303 of the Code of Civil | ||||||
11 | Procedure,
providing for interest on judgments, apply to | ||||||
12 | judgments for restitution entered
under this Section.
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13 | (Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09; | ||||||
14 | 96-1551, eff. 7-1-11.)".
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