SB-0145, As Passed House, April 30, 2009
January 29, 2009, Introduced by Senators BARCIA, CROPSEY, GARCIA, ANDERSON, KAHN, BIRKHOLZ, HARDIMAN, ALLEN, KUIPERS, GLEASON and BROWN and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 1a of chapter IX (MCL 769.1a), as amended by
1998 PA 231.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER IX
Sec.
1a. (1) As used in this section: , victim
(a) "Crime victim services commission" means that term as
described in section 2 of 1976 PA 223, MCL 18.352.
(b) "Victim" means an individual who suffers direct or
threatened physical, financial, or emotional harm as a result of
the commission of a felony, misdemeanor, or ordinance violation.
For purposes of subsections (2), (3), (6), (8), (9), and (13),
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 felony,
misdemeanor, or ordinance violation.
(2) Except as provided in subsection (8), when sentencing a
defendant convicted of a felony, misdemeanor, or ordinance
violation, 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.
(3) If a felony, misdemeanor, or ordinance violation results
in damage to or loss or destruction of property of a victim of the
felony, misdemeanor, or ordinance violation or results in the
seizure or impoundment of property of a victim of the felony,
misdemeanor, or ordinance violation, the order of restitution may
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 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 be utilized in lieu of the
fair market value.
(c) Pay the cost of the seizure or impoundment, or both.
(4) If a felony, misdemeanor, or ordinance violation results
in physical or psychological injury to a victim, the order of
restitution may require that the defendant do 1 or more of the
following, as applicable:
(a) Pay an amount equal to the cost of actual medical and
related professional services and devices relating to physical and
psychological care.
(b) Pay an amount equal to the cost of actual physical and
occupational therapy and rehabilitation.
(c) Reimburse the victim or the victim's estate for after-tax
income loss suffered by the victim as a result of the felony,
misdemeanor, or ordinance violation.
(d) Pay an amount equal to the cost of psychological and
medical treatment for members of the victim's family that has been
incurred as a result of the felony, misdemeanor, or ordinance
violation.
(e) Pay an amount equal to the cost of actual homemaking and
child care expenses incurred as a result of the felony,
misdemeanor, or ordinance violation.
(5) If a felony, misdemeanor, or ordinance violation resulting
in bodily injury also results in the death of a victim, the order
of restitution may require that the defendant pay an amount equal
to the cost of actual funeral and related services.
(6) If the victim or the 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, the court shall order that the
restitution be made to the victim's estate.
(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 felony,
misdemeanor, or ordinance violation. 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 require that all restitution to a victim or a
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. If an
entity entitled to restitution under this subsection for
compensating the victim or the victim's estate cannot or refuses to
be reimbursed for that compensation, the restitution paid for that
entity shall be deposited by the state treasurer in the crime
victim's rights fund created under section 4 of 1989 PA 196, MCL
780.904, or its successor fund.
(9) Any amount paid to a victim or a victim's estate under an
order of restitution shall 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 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.
(10) If not otherwise provided by the court under this
subsection, restitution shall be made immediately. However, the
court may require that the defendant make restitution under this
section within a specified period or in specified installments.
(11) If the defendant is placed on probation or paroled or the
court imposes a conditional sentence under section 3 of this
chapter, any restitution ordered under this section shall 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.
(12) 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, the court may modify the method of
payment.
(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.
(14) Notwithstanding any other provision of this section, a
defendant shall 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.
Senate Bill No. 145 as amended April 30, 2009
(15) In each case in which payment of restitution is ordered
as a condition of probation, 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. The final review shall
be conducted not less than 60 days before the probationary period
expires. If the probation officer determines 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. The report shall 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 to the prosecuting
attorney. If a 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.
(16) 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
ordered remanded to the department's jurisdiction.
[Enacting section 1. This amendatory act takes effect July 1, 2009, and applies only to crimes committed on or after that date.]
Enacting section [2.] This amendatory act does not take effect
unless Senate Bill No 146
of the 95th Legislature is enacted into law.