September 22, 2016, Introduced by Rep. Webber and referred to the Committee on Judiciary.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending sections 29, 30, and 31 of chapter XIIA (MCL 712A.29,
712A.30, and 712A.31), section 29 as amended by 2003 PA 74 and
sections 30 and 31 as amended by 1996 PA 561.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER XIIA
Sec. 29. (1) If a child is subject to any combination of
fines, costs, restitution, assessments, or payments arising out of
the same order of disposition, money collected from that child, or
his or her parent or parents, for the payment of fines, costs,
restitution, assessments, or other payments shall be allocated as
provided in this section.
(2) Except as otherwise provided in this subsection, if a
child is subject to payment of victim payments and any combination
of other fines, costs, assessments, or other payments, 50% of the
money collected from that child, or his or her parent or parents,
shall be applied to payment of victim payments, and the balance
shall be applied to payment of fines, costs, and other assessments
or payments. If fines, costs, or other assessments or payments
remain unpaid after all victim payments have been paid, additional
money collected shall be applied to payment of those fines, costs,
or other assessments or payments. If victim payments remain unpaid
after all fines, costs, or other assessments or payments have been
paid, additional money collected shall be applied toward payment of
those victim payments.
(3) In cases involving orders of disposition for offenses that
would be violations of state law if committed by an adult, money
allocated under subsection (2) for payment of fines, costs, and
assessments or payments other than victim payments shall be applied
in the following order of priority:
(a) Payment of the minimum state cost prescribed in section 1j
of chapter IX of the code of criminal procedure, 1927 PA 175, MCL
769.1j.
(b) Payment of other costs.
(c) Payment of fines.
(d) Payment of assessments and other payments.
(4) In cases involving orders of disposition for offenses that
would be violations of local ordinances if committed by an adult,
money allocated under subsection (2) for payment of fines, costs,
and assessments or payments other than victim payments shall be
applied in the following order of priority:
(a) Payment of the minimum state cost prescribed in section 1j
of chapter IX of the code of criminal procedure, 1927 PA 175, MCL
769.1j.
(b) Payment of fines and other costs.
(c) Payment of assessments and other payments.
(5) Money allocated for payment of costs under subsection (3)
shall be paid to the county treasurer for deposit in the general
fund of the county. Money allocated for payment of fines under
subsection (3) shall be paid to the county treasurer to be used for
library purposes as provided by law.
(6) One-third of the money allocated for payment of fines and
costs under subsection (4) shall be paid to the treasurer of the
political subdivision whose ordinance was violated, and 2/3 of that
money shall be paid to the county treasurer for deposit in the
general fund of the county.
(7) As used in this section, "victim payment" means
restitution ordered under sections 30 and 31 and under the William
Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.751
to 780.834, paid to the victim or the victim's estate, but not to a
person who reimbursed the victim for his or her loss, or an
assessment ordered under section 5 of 1989 PA 196, MCL 780.905.
Sec. 30. (1) For purposes of this section and section 31:
(a) "Course of conduct" means all of the following:
(i) Each offense for which the juvenile is adjudicated.
(ii) Each offense charged against the juvenile that is
dismissed as part of a plea agreement.
(iii) Each offense for which the juvenile could have been
charged by the prosecuting attorney but was not charged.
(b) (a)
"Juvenile offense" means
a violation by a juvenile of
a penal law of this state or a violation by a juvenile 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.
(c) (b)
"Victim" means an
individual who suffers direct or
threatened physical, financial, or emotional harm as a result of
the
commission of a juvenile offense. juvenile's course of conduct.
For purposes of subsections (2), (3), (6), (8), (9), and (13) only,
victim includes a sole proprietorship, partnership, corporation,
association, governmental entity, or other legal entity that
suffers direct physical or financial harm as a result of the
commission
of a juvenile offense.juvenile's
course of conduct.
(2) Except as provided in subsection (8), at the dispositional
hearing for a juvenile offense, the court shall order, in addition
to or in lieu of any other disposition 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 to the
victim's estate.
(3) If a juvenile offense results in damage to or loss or
destruction of property of a victim of the juvenile offense, or
results in the seizure or impoundment of property of a victim of
the
juvenile offense, the order of restitution may 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 damaged personal or real property can be repaired to
restore the property to its condition before the juvenile'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
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.
(d) (c)
Pay the costs of the seizure or
impoundment, or both.
(4) If a juvenile offense results in physical or psychological
injury
to a victim, the order of restitution may 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
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 juvenile
offense.
(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 actually
incurred or reasonably expected to be
incurred as a result of the juvenile offense.
(e) Pay an amount equal to the reasonably determined costs of
actual
homemaking and child care expenses actually incurred or
reasonably expected to be incurred as a result of the juvenile
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 a juvenile offense resulting in bodily injury also
results
in the death of a victim , the order of restitution may
require
that the juvenile 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)
If the a 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 a victim is deceased or dies, the court shall
order
that the restitution or remaining restitution be made to the
victim's estate.
(8) The court shall order restitution to the crime victims
compensation
board services commission or to any individuals,
partnerships, corporations, associations, governmental entities, or
any
other legal entities that have compensated the a victim
or
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 a victim as a result of
the juvenile 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 actions. 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 Act No. 196 of the
Public
Acts of 1989, being section 780.904 of the Michigan Compiled
Laws,
1989 PA 196, MCL 780.904, or its successor fund.
(9) Any amount paid to a victim or 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 victims compensation board 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 complied or 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)
A Subject to subsection
(18), 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 for a violation of probation, 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
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 to a person other than
his or her parent, 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 of the parent and the burden that the payment
of restitution will impose, with due regard to any other moral or
legal
financial obligations that 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 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
expiration
of the probationary period expires.
If the juvenile
caseworker or probation officer determines at any review that 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 that are
known by the juvenile caseworker or probation officer. The juvenile
caseworker or probation officer shall immediately provide a copy of
the report 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. 31. (1) In determining the amount of restitution to order
under section 30 of this chapter, the court shall consider the
amount of the loss sustained by any victim as a result of the
juvenile offense or the juvenile's course of conduct. In
determining whether to order the juvenile's supervisory parent to
pay restitution under section 30(15) of this chapter, the court
shall consider the financial resources of the juvenile's
supervisory parent and the other factors specified in section
30(16) of this chapter.
(2) The court may order the person preparing a report for the
purpose of disposition to obtain information pertaining to the
factors set forth in subsection (1). That person shall include the
information collected in the disposition report or in a separate
report, as the court directs.
(3) The court shall disclose to the juvenile, the juvenile's
supervisory parent, and the prosecuting attorney all portions of
the disposition or other report pertaining to the matters described
in subsection (1).
(4) Any dispute as to the proper amount or type of restitution
shall be resolved by the court by a preponderance of the evidence.
The burden of demonstrating the amount of the loss sustained by a
victim as a result of the juvenile offense shall be on the
prosecuting attorney. The burden of demonstrating the financial
resources of the juvenile's supervisory parent and the other
factors specified in section 30(16) of this chapter shall be on the
supervisory parent.
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. 5932 (request no.
05128'16).