September 22, 2016, Introduced by Rep. Cox 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
2009 PA 27.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER IX
Sec. 1a. (1) As used in this section:
(a) "Course of conduct" means all of the following:
(i) Each crime for which the individual is convicted.
(ii) Each criminal charge against the defendant that is
dismissed as part of a plea agreement.
(iii) Each crime for which the defendant could have been
charged by the prosecuting attorney but was not charged.
(b) "Crime" means a felony, a misdemeanor, or an ordinance
violation.
(c) (a)
"Crime victim services
commission" means that term as
described in section 2 of 1976 PA 223, MCL 18.352.
(d) (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. a
crime.
For purposes of subsections (2), (3), (6),
(8), (7), (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 felony, misdemeanor, or ordinance violation.a
crime.
(2)
Except as provided in subsection (8), (9), 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. For a crime in which more
than 1 person participated, all defendants or respondents shall be
ordered to pay full restitution. For an offense that is resolved by
assignment of the defendant to youthful trainee status, by a
delayed sentence or deferred judgment of guilt, by a finding of not
guilty by reason of insanity, 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 felony, misdemeanor, or ordinance violation crime
results in damage to or loss or destruction of property of a victim
of
the felony, misdemeanor, or ordinance violation crime
or results
in the seizure or impoundment of property of a victim of the
felony,
misdemeanor, or ordinance violation, crime, the order of
restitution
may 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 damaged personal or real property can be repaired to
restore the property to its condition before the defendant's or
respondent's course of conduct, pay an amount equal to the repair
cost. One or more repair estimates may be used as a basis for
restitution.
(c) (b)
If return of the property under
subdivision (a) is
impossible, impractical, or inadequate, or if repair of the
property under subdivision (b) 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.
(d) (c)
Pay the cost of the seizure or
impoundment, or both.
(4)
If a felony, misdemeanor, or ordinance violation crime
results in physical or psychological injury to a victim, the order
of
restitution may 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
actual
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
actual
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 felony,
misdemeanor,
or ordinance violation.crime.
(d) Pay an amount equal to the reasonably determined 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.actually
incurred and
reasonably expected to be incurred as a result of the crime.
(e) Pay an amount equal to the reasonably determined cost of
actual homemaking and child care expenses actually incurred and
reasonably
expected to be incurred as a result of
the felony,
misdemeanor,
or ordinance violation.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
actually have been incurred and reasonably be expected to 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 felony, misdemeanor, or ordinance violation crime
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.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.
(h) A skull fracture or other serious bone fracture.
(i) Subdural hemorrhage or subdural hematoma.
(j) Loss of a body organ.
(6) When sentencing a defendant convicted of an offense
described in chapter LXVIIA of the Michigan penal code, 1931 PA
328, MCL 750.462a to 750.462h, the court shall order the defendant
to pay all of the following:
(a) Lost income, calculated by whichever of the following
methods results in the largest amount:
(i) The gross amount received by the defendant from or the
value to the defendant of the victim's labor or services.
(ii) The value of the victim's labor or services as calculated
under the workforce opportunity wage act, 2014 PA 138, MCL 408.411
to 408.424, or the federal minimum wage, whichever results in the
largest value.
(iii) Income loss as determined under subsection (4)(c).
(b) The cost of transportation, temporary housing, and child
care expenses incurred by the victim because of the offense.
(c) Attorney fees and other costs and expenses incurred by the
victim because of the offense, including, but not limited to, costs
and expenses relating to assisting the investigation of the offense
and for attendance at related court proceedings as follows:
(i) Wages lost.
(ii) Child care.
(iii) Transportation.
(iv) Parking.
(d) Any other loss suffered by the victim as a proximate
result of the offense.
(7) (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.
(8) (7)
If the victim is deceased or dies,
the court shall
order that the restitution or remaining restitution be made to the
victim's estate.
(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 felony,
misdemeanor,
or ordinance violation. 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 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.
(10) (9)
Any amount paid to a victim or a
victim's estate
under an order of restitution shall be set off against any
identical 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.
(11) (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.
(12) (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 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)
A Subject to subsection (16),
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 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 good-faith
effort to do so.
(16) (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.
(17) (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.
(18) The court shall not impose a fee on a victim, the
victim's estate, or the prosecuting attorney for enforcing an order
of restitution.
(19) 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 offset the restitution it pays to the person
or entity.
(20) 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.
(21) 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.
(22) 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.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 98th Legislature are
enacted into law:
(a) Senate Bill No. 873.
(b) Senate Bill No.____ or House Bill No. 5933 (request no.
05111'16).