Sen. Toi W. Hutchinson
Filed: 5/18/2011
 
 


 




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1
AMENDMENT TO HOUSE BILL 1689




2 AMENDMENT NO. ______. Amend House Bill 1689, AS AMENDED, by 
3replacing everything after the enacting clause with the 
4following:


5 "Section 5. The Criminal Code of 1961 is amended by 
6changing 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 
9delayed effective date)

10 Sec. 17-56. Financial exploitation of an elderly person or 
11a
person with a disability.

12 (a) A person commits financial exploitation of an elderly

13person or a person with a disability when he or she stands in a

14position of trust
or confidence with the
elderly person or a 
15person with a disability
and he
or she knowingly and by

16deception or
intimidation obtains control over the property of 
 
 
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1an elderly person or
a person
with a disability
or illegally 
2uses the assets or resources of an elderly person or a
person 
3with a disability.

4 (b) Sentence. Financial exploitation of an elderly person 
5or a person
with a
disability is: (1) a Class 4
felony if the 
6value of the property is $300 or less, (2) a Class 3 felony if

7the 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 
101 felony if the value of the property is $50,000 $100,000 or 
11more
or if the elderly person is over 70 years of age and the 
12value of the
property is $15,000 or more or if the elderly 
13person is 80 years of age or
older and the value of the 
14property is $5,000 or more.

15 (c) For purposes of this Section:


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.


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 
14person or a person with a disability includes, but is not 
15limited
to, the misappropriation of those assets or resources 
16by undue influence,
breach of a fiduciary relationship, fraud, 
17deception, extortion, or
use of the assets or resources 
18contrary to law.
19 A person stands in a position of
trust and confidence with 
20an elderly person or person with a
disability when he (i) is a

21parent, spouse, adult child or other relative by blood or 
22marriage of the
elderly person or person with a disability, 
23(ii) is a joint
tenant or
tenant in common with
the elderly 
24person or person with a disability, (iii) has
a legal or

25fiduciary relationship
with the elderly person or person with a 
26disability, or (iv) is a financial
planning or investment 
 
 
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1professional.

2 (d) Limitations. Nothing in this Section shall be construed 
3to limit the remedies
available to the victim under the 
4Illinois Domestic Violence Act of 1986.

5 (e) Good faith efforts. Nothing in this Section shall be 
6construed to impose criminal
liability on a person who has made 
7a good faith effort to assist the
elderly person or person with 
8a disability in the
management of his or her
property, but 
9through
no fault of his or her own has been unable to provide 
10such assistance.

11 (f) Not a defense. It shall not be a defense to financial 
12exploitation of an elderly
person or person with a disability 
13that the accused reasonably believed
that the victim was
not an 
14elderly person or person with a disability.

15 (g) Civil Liability. A person who is charged by information 
16or
indictment with the offense of financial exploitation of an 
17elderly person
or person with a disability and who fails or 
18refuses to return
the victim's property
within 60 days 
19following a written demand from the victim or the victim's

20legal representative shall be liable to the victim or to the 
21estate of the
victim in damages of treble the amount of the 
22value of the property
obtained, plus reasonable attorney fees 
23and court costs. The burden of
proof that the defendant 
24unlawfully obtained the victim's property shall be
by a 
25preponderance of the evidence. This subsection shall be 
26operative
whether or not the defendant has been convicted of 
 
 
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1the offense.

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 
4changing 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)

7 Sec. 5-5-6. In all convictions for offenses in violation of 
8the Criminal
Code of 1961 or of Section 11-501 of the Illinois 
9Vehicle Code in which the person received any injury to his or 
10her person or damage
to his or her real or personal property as 
11a result of the criminal act of the
defendant, the court shall 
12order restitution as provided in this Section. In
all other 
13cases, except cases in which restitution is required under this

14Section, the court must at the sentence hearing determine 
15whether restitution
is an appropriate sentence to be imposed on 
16each defendant convicted of an
offense. If the court determines 
17that an order directing the offender to make
restitution is 
18appropriate, the offender may be sentenced to make restitution.

19The court may consider restitution an appropriate sentence to 
20be imposed on each defendant convicted of an offense in 
21addition to a sentence of imprisonment. The sentence of the 
22defendant to a term of imprisonment is not a mitigating factor 
23that prevents the court from ordering the defendant to pay 
24restitution. If
the offender is sentenced to make restitution 
 
 
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1the Court shall determine the
restitution as hereinafter set 
2forth:

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,

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.

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

23 the child at the discretion of the court.

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

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.

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.

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.

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.

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.

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 
 
 
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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 
 
 
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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 
4of the sentence imposed for the offense.

5 A restitution order under this Section is not discharged by 
6the
liquidation of a person's estate by a receiver. A 
7restitution order under
this Section may be enforced in the 
8same manner as judgment liens are
enforced under Article XII of 
9the Code of Civil Procedure.

10 The provisions of Section 2-1303 of the Code of Civil 
11Procedure,
providing for interest on judgments, apply to 
12judgments for restitution entered
under this Section.

13(Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09; 
1496-1551, eff. 7-1-11.)".