HB-4636, As Passed House, October 15, 2013HB-4636, As Passed Senate, October 15, 2013
April 30, 2013, Introduced by Reps. Leonard, Kelly, Outman, Schor, Lund, MacGregor, Lori, Rendon, Johnson, Zemke, Faris, Dianda, Kivela, Foster, Kesto, Cotter, Haveman, Heise, Daley, Knezek, Schmidt, Ananich, Graves and Lauwers and referred to the Committee on Judiciary.
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 2009 PA 28.
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), and (13) 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), 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 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 costs of the seizure or impoundment, or both.
(4) If a crime results in physical or psychological injury to
a victim, the order of restitution shall 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.
(c) Reimburse the victim or the victim's estate for after-tax
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 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.
(c) Loss of an eye or use of an eye or ear.
(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.
House Bill No. 4636 as amended September 19, 2013
(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) 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 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.
(9) Any amount paid to a victim or 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 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 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) Subject to subsection (18), 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.
(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.
(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 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.
(16) If the court orders a parent to pay restitution under
subsection (15), 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), the court shall provide for
payment to be made in specified installments and within a specified
period of time.
(17) A parent who has been ordered to pay restitution under
subsection (15) 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.
(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 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 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.
(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.
(20) The court shall not impose a fee on a victim, victim's
estate, or prosecuting attorney for enforcing an order of
restitution.
(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 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.
(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.
(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.
(24) If the victim is a minor, the order of restitution shall
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).
(c) Mileage.
(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), and (13) 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), 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 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 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 be utilized in lieu of the
fair market value.
(c) Pay the costs of the seizure or impoundment, or both.
(4) If an offense results in physical or psychological injury
to a victim, the order of restitution shall 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.
(c) Reimburse the victim or the victim's estate for after-tax
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 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.
House Bill No. 4636 as amended September 19, 2013
(c) Loss of an eye or use of an eye or ear.
(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) 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 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.
(9) Any amount paid to a victim or 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 juvenile make restitution under this
section within a specified period or in specified installments.
(11) If the juvenile is placed on probation, any restitution
ordered under this section shall 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.
(12) Subject to subsection (18), 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.
(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
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.
(14) Notwithstanding any other provision of this section, a
juvenile shall 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.
(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 be offset by any amount paid by his or her
parent. As used in this subsection, "parent" does not include a
foster parent.
(16) If the court orders a parent to pay restitution under
subsection (15), 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), the court shall provide for
payment to be made in specified installments and within a specified
period of time.
(17) A parent who has been ordered to pay restitution under
subsection (15) 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.
(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 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 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.
(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.
(20) The court shall not impose a fee on a victim, victim's
estate, or prosecuting attorney for enforcing an order of
restitution.
(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 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.
(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.
(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.
(24) If the victim is a minor, the order of restitution shall
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).
(c) Mileage.
(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. 76. (1) As used in this section only:
(a) "Misdemeanor" means a violation of a law of this state or
a local ordinance that is punishable by imprisonment for not more
than 1 year or a fine that is not a civil fine, but that is not a
felony.
(b) "Victim" means an individual who suffers direct or
threatened physical, financial, or emotional harm as a result of
the commission of a misdemeanor. As used in subsections (2), (3),
(6), (8), (9), and (13) 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 misdemeanor.
(2) Except as provided in subsection (8), when sentencing a
defendant convicted of a misdemeanor, 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 misdemeanor results in damage to or loss or
destruction of property of a victim of the misdemeanor or results
in the seizure or impoundment of property of a victim of the
misdemeanor, the order of restitution shall 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 costs of the seizure or impoundment, or both.
(4) If a misdemeanor results in physical or psychological
injury to a victim, the order of restitution shall 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.
(c) Reimburse the victim or the victim's estate for after-tax
income loss suffered by the victim as a result of the misdemeanor.
(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 misdemeanor.
(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 misdemeanor 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 misdemeanor
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 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.
(c) Loss of an eye or use of an eye or ear.
(d) Loss or substantial impairment of a bodily function.
House Bill No. 4636 as amended September 19, 2013
(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) 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 misdemeanor.
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 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.
(9) Any amount paid to a victim or 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 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 be a condition of that
probation or sentence. The court may revoke probation or impose
imprisonment under the conditional sentence 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 impose imprisonment, the court 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) Subject to subsection (15), 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.
(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
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 otherwise for failure to pay restitution
as ordered under this section unless the court determines that the
defendant has the resources to pay the ordered restitution and has
not made a good faith effort to do so.
(15) 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 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 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.
(16) If the court determines that 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 court determines that the defendant is
remanded to the department's jurisdiction.
(17) The court shall not impose a fee on a victim, victim's
estate, or prosecuting attorney for enforcing an order of
restitution.
(18) 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 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.
(19) 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.
(20) 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.
(21) If the victim is a minor, the order of restitution shall
require the defendant 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).
(c) Mileage.
(d) Lodging or housing.
(e) Meals.
(f) Any other cost incurred in exercising the rights of the
victim or a parent under this act.