Bill Text: IL HB1689 | 2011-2012 | 97th General Assembly | Enrolled

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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-Enrolled.html

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AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Criminal Code of 1961 is amended by changing
Section 17-56 as follows:
(720 ILCS 5/17-56) (was 720 ILCS 5/16-1.3)
(This Section may contain text from a Public Act with a
delayed effective date)
Sec. 17-56. Financial exploitation of an elderly person or
a person with a disability.
(a) A person commits financial exploitation of an elderly
person or a person with a disability when he or she stands in a
position of trust or confidence with the elderly person or a
person with a disability and he or she knowingly and by
deception or intimidation obtains control over the property of
an elderly person or a person with a disability or illegally
uses the assets or resources of an elderly person or a person
with a disability.
(b) Sentence. Financial exploitation of an elderly person
or a person with a disability is: (1) a Class 4 felony if the
value of the property is $300 or less, (2) a Class 3 felony if
the value of the property is more than $300 but less than
$5,000, (3) a Class 2 felony if the value of the property is

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$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

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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

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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)

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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

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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

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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,

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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

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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

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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.

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(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

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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

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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

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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

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the Code of Civil Procedure.
The provisions of Section 2-1303 of the Code of Civil
Procedure, providing for interest on judgments, apply to
judgments for restitution entered under this Section.
(Source: P.A. 95-331, eff. 8-21-07; 96-290, eff. 8-11-09;
96-1551, eff. 7-1-11.)