Bill Text: MI HB5005 | 2017-2018 | 99th Legislature | Introduced

Michigan House Bill 5005 (Prior Session Legislation)

Introduced

Bill Title: Crime victims; restitution; lost income from rental property made uninhabitable or unfit for intended purpose by larceny; require. Amends secs. 16, 44 & 76 of 1985 PA 87 (MCL 780.766 et seq.). TIE BAR WITH: HB 5008'17

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2017-09-27 - Bill Electronically Reproduced 09/26/2017 [HB5005 Detail]

Download: Michigan-2017-HB5005-Introduced.html

HOUSE BILL No. 5005

September 26, 2017, Introduced by Reps. Sheppard, Hoitenga, Iden and Kesto and referred to the Committee on Law and Justice.

A bill to amend 1985 PA 87, entitled

"William Van Regenmorter crime victim's rights act,"

by amending sections 16, 44, and 76 (MCL 780.766, 780.794, and

780.826), as amended by 2013 PA 139.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 16. (1) As used in this section only, "victim" means an

individual who suffers direct or threatened physical, financial, or

emotional harm as a result of the commission of a crime. As used in

subsections (2), (3), (6), (8), (9), (10), and ~~(13)~~ (14) only,

victim includes a sole proprietorship, partnership, corporation,

association, governmental entity, or any other legal entity that

suffers direct physical or financial harm as a result of a crime.

(2) Except as provided in subsection ~~(8),~~ (9), when sentencing

a defendant convicted of a crime, the court shall order, in

addition to or in lieu of any other penalty authorized by law or in

addition to any other penalty required by law, that the defendant

make full restitution to any victim of the defendant's course of

conduct that gives rise to the conviction or to the victim's

estate. For an offense that is resolved by assignment of the

defendant to youthful trainee status, by a delayed sentence or

deferred judgment of guilt, or in another way that is not an

acquittal or unconditional dismissal, the court shall order the

restitution required under this section.

(3) If a crime results in damage to or loss or destruction of

property of a victim of the crime or results in the seizure or

impoundment of property of a victim of the crime, the order of

restitution ~~shall~~ must require that the defendant do 1 or more of

the following, as applicable:

(a) Return the property to the owner of the property or to a

person designated by the owner.

(b) If return of the property under subdivision (a) is

impossible, impractical, or inadequate, pay an amount equal to the

greater of subparagraph (i) or (ii), less the value, determined as

of the date the property is returned, of that property or any part

of the property that is returned:

(i) The fair market value of the property on the date of the

damage, loss, or destruction. However, if the fair market value of

the property cannot be determined or is impractical to ascertain,

then the replacement value of the property ~~shall~~ must be utilized

in lieu of the fair market value.

(ii) The fair market value of the property on the date of

sentencing. However, if the fair market value of the property

cannot be determined or is impractical to ascertain, then the

replacement value of the property ~~shall~~ must be utilized in lieu of

the fair market value.

(4) If a crime results in physical or psychological injury to

a victim, the order of restitution ~~shall~~ must require that the

defendant do 1 or more of the following, as applicable:

(a) Pay an amount equal to the reasonably determined cost of

medical and related professional services and devices actually

incurred and reasonably expected to be incurred relating to

physical and psychological care.

(b) Pay an amount equal to the reasonably determined cost of

physical and occupational therapy and rehabilitation actually

incurred and reasonably expected to be incurred.

income loss suffered by the victim as a result of the crime.

(d) Pay an amount equal to the reasonably determined cost of

psychological and medical treatment for members of the victim's

family actually incurred and reasonably expected to be incurred as

a result of the crime.

(e) Pay an amount equal to the reasonably determined costs of

homemaking and child care expenses actually incurred and reasonably

expected to be incurred as a result of the crime or, if homemaking

or child care is provided without compensation by a relative,

friend, or any other person, an amount equal to the costs that

would reasonably be incurred as a result of the crime for that

homemaking and child care, based on the rates in the area for

comparable services.

(f) Pay an amount equal to the cost of actual funeral and

related services.

(g) If the deceased victim could be claimed as a dependent by

his or her parent or guardian on the parent's or guardian's

federal, state, or local income tax returns, pay an amount equal to

the loss of the tax deduction or tax credit. The amount of

reimbursement ~~shall~~ must be estimated for each year the victim

could reasonably be claimed as a dependent.

(h) Pay an amount equal to income actually lost by the spouse,

parent, sibling, child, or grandparent of the victim because the

family member left his or her employment, temporarily or

permanently, to care for the victim because of the injury.

(5) If a crime resulting in bodily injury also results in the

death of a victim or serious impairment of a body function of a

victim, the court may order up to 3 times the amount of restitution

otherwise allowed under this section. As used in this subsection,

"serious impairment of a body function of a victim" includes, but

is not limited to, 1 or more of the following:

(a) Loss of a limb or use of a limb.

(b) Loss of a hand or foot or use of a hand or foot.

(d) Loss or substantial impairment of a bodily function.

(e) Serious visible disfigurement.

(f) A comatose state that lasts for more than 3 days.

(g) Measurable brain damage or mental impairment.

(h) A skull fracture or other serious bone fracture.

(i) Subdural hemorrhage or subdural hematoma.

(j) Loss of a body organ.

(6) If the victim or victim's estate consents, the order of

restitution may require that the defendant make restitution in

services in lieu of money.

(7) If the victim is deceased or dies, the court shall order

that the restitution or remaining restitution be made to those

entitled to inherit from the victim's estate.

(8) If the crime for which restitution is ordered under this

section was a violation of section 356(1)(h) that resulted in a

loss of rental income to the victim because the violation rendered

the rental property owned by the victim uninhabitable or unfit for

its intended purpose, the court shall require that the defendant

pay an amount equal to any loss of rental income sustained by the

victim.

(9) ~~(8)~~ The court shall order restitution to the crime victim

services commission or to any individuals, partnerships,

corporations, associations, governmental entities, or other legal

entities that have compensated the victim or the victim's estate

for a loss incurred by the victim to the extent of the compensation

paid for that loss. The court shall also order restitution for the

costs of services provided to persons or entities that have

provided services to the victim as a result of the crime. Services

that are subject to restitution under this subsection include, but

are not limited to, shelter, food, clothing, and transportation.

However, an order of restitution ~~shall~~ must require that all

restitution to a victim or victim's estate under the order be made

before any restitution to any other person or entity under that

order is made. The court shall not order restitution to be paid to

a victim or victim's estate if the victim or victim's estate has

received or is to receive compensation for that loss, and the court

shall state on the record with specificity the reasons for its

action.

(10) ~~(9)~~ Any amount paid to a victim or victim's estate under

an order of restitution ~~shall~~ must be set off against any amount

later recovered as compensatory damages by the victim or the

victim's estate in any federal or state civil proceeding and ~~shall~~

must reduce the amount payable to a victim or a victim's estate by

an award from the crime victim services commission made after an

order of restitution under this section.

(11) ~~(10)~~ If not otherwise provided by the court under this

subsection, restitution ~~shall~~ must be made immediately. However,

the court may require that the defendant make restitution under

this section within a specified period or in specified

installments.

(12) ~~(11)~~ If the defendant is placed on probation or paroled

or the court imposes a conditional sentence as provided in section

3 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL

769.3, any restitution ordered under this section ~~shall~~ must be a

condition of that probation, parole, or sentence. The court may

revoke probation or impose imprisonment under the conditional

sentence and the parole board may revoke parole if the defendant

fails to comply with the order and if the defendant has not made a

good faith effort to comply with the order. In determining whether

to revoke probation or parole or impose imprisonment, the court or

parole board shall consider the defendant's employment status,

earning ability, and financial resources, the willfulness of the

defendant's failure to pay, and any other special circumstances

that may have a bearing on the defendant's ability to pay.

(13) ~~(12)~~ Subject to subsection ~~(18),~~ (19), a defendant who is

required to pay restitution and who is not in willful default of

the payment of the restitution may at any time petition the

sentencing judge or his or her successor to modify the method of

payment. If the court determines that payment under the order will

impose a manifest hardship on the defendant or his or her immediate

family, and if the court also determines that modifying the method

of payment will not impose a manifest hardship on the victim, the

court may modify the method of payment.

(14) ~~(13)~~ An order of restitution entered under this section

remains effective until it is satisfied in full. An order of

restitution is a judgment and lien against all property of the

defendant for the amount specified in the order of restitution. The

lien may be recorded as provided by law. An order of restitution

may be enforced by the prosecuting attorney, a victim, a victim's

estate, or any other person or entity named in the order to receive

the restitution in the same manner as a judgment in a civil action

or a lien.

(15) ~~(14)~~ Notwithstanding any other provision of this section,

a defendant ~~shall~~ must not be imprisoned, jailed, or incarcerated

for a violation of probation or parole or otherwise for failure to

pay restitution as ordered under this section unless the court or

parole board determines that the defendant has the resources to pay

the ordered restitution and has not made a good faith effort to do

so.

(16) ~~(15)~~ If the court determines that a juvenile is or will

be unable to pay all of the restitution ordered, after notice to

the juvenile's parent or parents and an opportunity for the parent

or parents to be heard the court may order the parent or parents

having supervisory responsibility for the juvenile at the time of

the acts upon which an order of restitution is based to pay any

portion of the restitution ordered that is outstanding. An order

under this subsection does not relieve the juvenile of his or her

obligation to pay restitution as ordered, but the amount owed by

the juvenile ~~shall~~ must be offset by any amount paid by his or her

parent. As used in this subsection:

(a) "Juvenile" means a person within the court's jurisdiction

under section 2d or 4 of chapter XIIA of the probate code of 1939,

1939 PA 288, MCL 712A.2d and 712A.4.

(b) "Parent" does not include a foster parent.

(17) ~~(16)~~ If the court orders a parent to pay restitution

under subsection ~~(15),~~ (16), the court shall take into account the

parent's financial resources and the burden that the payment of

restitution will impose, with due regard to any other moral or

legal financial obligations the parent may have. If a parent is

required to pay restitution under subsection ~~(15),~~ (16), the court

shall provide for payment to be made in specified installments and

within a specified period of time.

(18) ~~(17)~~ A parent who has been ordered to pay restitution

under subsection ~~(15)~~ (16) may petition the court for a

modification of the amount of restitution owed by the parent or for

a cancellation of any unpaid portion of the parent's obligation.

The court shall cancel all or part of the parent's obligation due

if the court determines that payment of the amount due will impose

a manifest hardship on the parent and if the court also determines

that modifying the method of payment will not impose a manifest

hardship on the victim.

(19) ~~(18)~~ In each case in which payment of restitution is

ordered as a condition of probation, the court shall order any

employed defendant to make regularly scheduled restitution

payments. If the defendant misses 2 or more regularly scheduled

payments, the court shall order the defendant to execute a wage

assignment to pay the restitution. The probation officer assigned

to the case shall review the case not less than twice yearly to

ensure that restitution is being paid as ordered. If the

restitution was ordered to be made within a specific period of

time, the probation officer assigned to the case shall review the

case at the end of the specific period of time to determine if the

restitution has been paid in full. The final review ~~shall~~ must be

conducted not less than 60 days before the probationary period

expires. If the probation officer determines at any review that

restitution is not being paid as ordered, the probation officer

shall file a written report of the violation with the court on a

form prescribed by the state court administrative office or shall

petition the court for a probation violation. The report or

petition ~~shall~~ must include a statement of the amount of the

arrearage and any reasons for the arrearage known by the probation

officer. The probation officer shall immediately provide a copy of

the report or petition to the prosecuting attorney. If a petition

or motion is filed or other proceedings are initiated to enforce

payment of restitution and the court determines that restitution is

not being paid or has not been paid as ordered by the court, the

court shall promptly take action necessary to compel compliance.

(20) ~~(19)~~ If a defendant who is ordered to pay restitution

under this section is remanded to the jurisdiction of the

department of corrections, the court shall provide a copy of the

order of restitution to the department of corrections when the

defendant is remanded to the department's jurisdiction.

(21) ~~(20)~~ The court shall not impose a fee on a victim,

victim's estate, or prosecuting attorney for enforcing an order of

restitution.

(22) ~~(21)~~ If a person or entity entitled to restitution under

this section cannot be located, refuses to claim the restitution

within 2 years after the date on which he or she could have claimed

the restitution, or refuses to accept the restitution, the

restitution to which that person or entity is entitled ~~shall~~ must

be deposited in the crime victim's rights fund created under

section 4 of 1989 PA 196, MCL 780.904, or its successor fund.

However, a person or entity entitled to that restitution may claim

that restitution any time by applying to the court that originally

ordered and collected it. The court shall notify the crime victim

services commission of the application and the commission shall

approve a reduction in the court's revenue transmittal to the crime

victim's rights fund equal to the restitution owed to the person or

entity. The court shall use the reduction to reimburse that

restitution to the person or entity.

(23) ~~(22)~~ The court may amend an order of restitution entered

under this section on a motion by the prosecuting attorney, the

victim, or the defendant based upon new information related to the

injury, damages, or loss for which the restitution was ordered.

(24) ~~(23)~~ A court that receives notice that a defendant who

has an obligation to pay restitution under this section has

declared bankruptcy shall forward a copy of that notice to the

prosecuting attorney. The prosecuting attorney shall forward the

notice to the victim at the victim's last known address.

(25) ~~(24)~~ If the victim is a minor, the order of restitution

~~shall~~ must require the defendant to pay to a parent of the victim

an amount that is determined to be reasonable for any of the

following that are actually incurred or reasonably expected to be

incurred by the parent as a result of the crime:

(a) Homemaking and child care expenses.

(b) Income loss not ordered to be paid under subsection

(4)(h).

(d) Lodging or housing.

(e) Meals.

(f) Any other cost incurred in exercising the rights of the

victim or a parent under this act.

Sec. 44. (1) As used in this section only:

(a) "Offense" means a violation of a penal law of this state

or a violation of an ordinance of a local unit of government of

this state punishable by imprisonment or by a fine that is not a

civil fine.

(b) "Victim" means an individual who suffers direct or

threatened physical, financial, or emotional harm as a result of

the commission of an offense. As used in subsections (2), (3), (6),

(8), (9), (10), and ~~(13)~~ (14) only, victim includes a sole

proprietorship, partnership, corporation, association, governmental

entity, or any other legal entity that suffers direct physical or

financial harm as a result of an offense.

(2) Except as provided in subsection ~~(8),~~ (9), at the

dispositional hearing or sentencing for an offense, the court shall

order, in addition to or in lieu of any other disposition or

penalty authorized by law, that the juvenile make full restitution

to any victim of the juvenile's course of conduct that gives rise

to the disposition or conviction or to the victim's estate. For an

offense that is resolved informally by means of a consent calendar

diversion or by another informal method that does not result in a

dispositional hearing, by assignment to youthful trainee status, by

a delayed sentence or deferred judgment of guilt, or in another way

that is not an acquittal or unconditional dismissal, the court

shall order the restitution required under this section.

(3) If an offense results in damage to or loss or destruction

of property of a victim of the offense or results in the seizure or

impoundment of property of a victim of the offense, the order of

restitution ~~shall~~ must require that the juvenile do 1 or more of

the following, as applicable:

(a) Return the property to the owner of the property or to a

person designated by the owner.

(b) If return of the property under subdivision (a) is

impossible, impractical, or inadequate, pay an amount equal to the

greater of subparagraph (i) or (ii), less the value, determined as

of the date the property is returned, of that property or any part

of the property that is returned:

(i) The fair market value of the property on the date of the

damage, loss, or destruction. However, if the fair market value of

the property cannot be determined or is impractical to ascertain,

then the replacement value of the property ~~shall~~ must be utilized

in lieu of the fair market value.

(ii) The fair market value of the property on the date of

disposition. However, if the fair market value of the property

cannot be determined or is impractical to ascertain, then the

replacement value of the property ~~shall~~ must be utilized in lieu of

the fair market value.

(4) If an offense results in physical or psychological injury

to a victim, the order of restitution ~~shall~~ must require that the

juvenile do 1 or more of the following, as applicable:

(a) Pay an amount equal to the reasonably determined cost of

medical and related professional services and devices actually

incurred and reasonably expected to be incurred relating to

physical and psychological care.

(b) Pay an amount equal to the reasonably determined cost of

physical and occupational therapy and rehabilitation actually

incurred and reasonably expected to be incurred.

income loss suffered by the victim as a result of the offense.

(d) Pay an amount equal to the reasonably determined cost of

psychological and medical treatment for members of the victim's

family actually incurred or reasonably expected to be incurred as a

result of the offense.

(e) Pay an amount equal to the reasonably determined costs of

homemaking and child care expenses actually incurred or reasonably

expected to be incurred as a result of the offense or, if

homemaking or child care is provided without compensation by a

relative, friend, or any other person, an amount equal to the costs

that would reasonably be incurred as a result of the offense for

that homemaking and child care, based on the rates in the area for

comparable services.

(f) Pay an amount equal to the cost of actual funeral and

related services.

(g) If the deceased victim could be claimed as a dependent by

his or her parent or guardian on the parent's or guardian's

federal, state, or local income tax returns, pay an amount equal to

the loss of the tax deduction or tax credit. The amount of

reimbursement ~~shall~~ must be estimated for each year the victim

could reasonably be claimed as a dependent.

(h) Pay an amount equal to income actually lost by the spouse,

parent, sibling, child, or grandparent of the victim because the

family member left his or her employment, temporarily or

permanently, to care for the victim because of the injury.

(5) If an offense resulting in bodily injury also results in

the death of a victim or serious impairment of a body function of a

victim, the court may order up to 3 times the amount of restitution

otherwise allowed under this section. As used in this subsection,

"serious impairment of a body function of a victim" includes, but

is not limited to, 1 or more of the following:

(a) Loss of a limb or use of a limb.

(b) Loss of a hand or foot or use of a hand or foot.

(d) Loss or substantial impairment of a bodily function.

(e) Serious visible disfigurement.

(f) A comatose state that lasts for more than 3 days.

(g) Measurable brain damage or mental impairment.

(h) A skull fracture or other serious bone fracture.

(i) Subdural hemorrhage or subdural hematoma.

(j) Loss of a body organ.

(6) If the victim or victim's estate consents, the order of

restitution may require that the juvenile make restitution in

services in lieu of money.

(7) If the victim is deceased or dies, the court shall order

that the restitution or remaining restitution be made to those

entitled to inherit from the victim's estate.

(8) If the offense for which restitution is ordered under this

section was a violation of section 356(1)(h) that resulted in a

loss of rental income to the victim because the violation rendered

the rental property owned by the victim uninhabitable or unfit for

its intended purpose, the court shall require that the defendant

pay an amount equal to any loss of rental income sustained by the

victim.

(9) ~~(8)~~ The court shall order restitution to the crime victim

services commission or to any individuals, partnerships,

corporations, associations, governmental entities, or other legal

entities that have compensated the victim or the victim's estate

for a loss incurred by the victim to the extent of the compensation

paid for that loss. The court shall also order restitution for the

costs of services provided to persons or entities that have

provided services to the victim as a result of the offense.

Services that are subject to restitution under this subsection

include, but are not limited to, shelter, food, clothing, and

transportation. However, an order of restitution ~~shall~~ must require

that all restitution to a victim or victim's estate under the order

be made before any restitution to any other person or entity under

that order is made. The court shall not order restitution to be

paid to a victim or victim's estate if the victim or victim's

estate has received or is to receive compensation for that loss,

and the court shall state on the record with specificity the

reasons for its action.

(10) ~~(9)~~ Any amount paid to a victim or victim's estate under

an order of restitution ~~shall~~ must be set off against any amount

later recovered as compensatory damages by the victim or the

victim's estate in any federal or state civil proceeding and ~~shall~~

must reduce the amount payable to a victim or a victim's estate by

an award from the crime victim services commission made after an

order of restitution under this section.

(11) ~~(10)~~ If not otherwise provided by the court under this

subsection, restitution ~~shall~~ must be made immediately. However,

the court may require that the juvenile make restitution under this

section within a specified period or in specified installments.

(12) ~~(11)~~ If the juvenile is placed on probation, any

restitution ordered under this section ~~shall~~ must be a condition of

that probation. The court may revoke probation if the juvenile

fails to comply with the order and if the juvenile has not made a

good faith effort to comply with the order. In determining whether

to revoke probation, the court shall consider the juvenile's

employment status, earning ability, and financial resources, the

willfulness of the juvenile's failure to pay, and any other special

circumstances that may have a bearing on the juvenile's ability to

pay.

(13) ~~(12)~~ Subject to subsection ~~(18),~~ (19), a juvenile who is

required to pay restitution and who is not in willful default of

the payment of the restitution may at any time petition the court

to modify the method of payment. If the court determines that

payment under the order will impose a manifest hardship on the

juvenile or his or her immediate family, and if the court also

determines that modifying the method of payment will not impose a

manifest hardship on the victim, the court may modify the method of

payment.

(14) ~~(13)~~ An order of restitution entered under this section

~~remains~~ is effective until it is satisfied in full. An order of

restitution is a judgment and lien against all property of the

individual ordered to pay restitution for the amount specified in

the order of restitution. The lien may be recorded as provided by

law. An order of restitution may be enforced by the prosecuting

attorney, a victim, a victim's estate, or any other person or

entity named in the order to receive the restitution in the same

manner as a judgment in a civil action or a lien.

(15) ~~(14)~~ Notwithstanding any other provision of this section,

a juvenile ~~shall~~ must not be detained or imprisoned for a violation

of probation or parole or otherwise for failure to pay restitution

as ordered under this section unless the court determines that the

juvenile has the resources to pay the ordered restitution and has

not made a good faith effort to do so.

(16) ~~(15)~~ If the court determines that the juvenile is or will

be unable to pay all of the restitution ordered, after notice to

the juvenile's parent or parents and an opportunity for the parent

or parents to be heard, the court may order the parent or parents

having supervisory responsibility for the juvenile at the time of

the acts upon which an order of restitution is based to pay any

portion of the restitution ordered that is outstanding. An order

under this subsection does not relieve the juvenile of his or her

obligation to pay restitution as ordered, but the amount owed by

the juvenile ~~shall~~ must be offset by any amount paid by his or her

parent. As used in this subsection, "parent" does not include a

foster parent.

(17) ~~(16)~~ If the court orders a parent to pay restitution

under subsection ~~(15),~~ (16), the court shall take into account the

parent's financial resources and the burden that the payment of

restitution will impose, with due regard to any other moral or

legal financial obligations the parent may have. If a parent is

required to pay restitution under subsection ~~(15),~~ (16), the court

shall provide for payment to be made in specified installments and

within a specified period of time.

(18) ~~(17)~~ A parent who has been ordered to pay restitution

under subsection ~~(15)~~ (16) may petition the court for a

modification of the amount of restitution owed by the parent or for

a cancellation of any unpaid portion of the parent's obligation.

The court shall cancel all or part of the parent's obligation due

if the court determines that payment of the amount due will impose

a manifest hardship on the parent and if the court also determines

that modifying the method of payment will not impose a manifest

hardship on the victim.

(19) ~~(18)~~ In each case in which payment of restitution is

ordered as a condition of probation, the court shall order any

employed juvenile to make regularly scheduled restitution payments.

If the juvenile misses 2 or more regularly scheduled payments, the

court shall order the juvenile to execute a wage assignment to pay

the restitution. The juvenile caseworker or probation officer

assigned to the case shall review the case not less than twice

yearly to ensure that restitution is being paid as ordered. If the

restitution was ordered to be made within a specific period of

time, the juvenile caseworker or probation officer assigned to the

case shall review the case at the end of the specific period of

time to determine if the restitution has been paid in full. The

final review ~~shall~~ must be conducted not less than 60 days before

the probationary period expires. If the juvenile caseworker or

probation officer determines at any review the restitution is not

being paid as ordered, the juvenile caseworker or probation officer

shall file a written report of the violation with the court on a

form prescribed by the state court administrative office or shall

petition the court for a probation violation. The report or

petition ~~shall~~ must include a statement of the amount of the

arrearage, and any reasons for the arrearage known by the juvenile

caseworker or probation officer. The juvenile caseworker or

probation officer shall immediately provide a copy of the report or

petition to the prosecuting attorney. If a petition or motion is

filed or other proceedings are initiated to enforce payment of

restitution and the court determines that restitution is not being

paid or has not been paid as ordered by the court, the court shall

promptly take action necessary to compel compliance.

(20) ~~(19)~~ If the court determines that an individual who is

ordered to pay restitution under this section is remanded to the

jurisdiction of the department of corrections, the court shall

provide a copy of the order of restitution to the department of

corrections when the court determines that the individual is

remanded to the department's jurisdiction.