September 26, 2017, Introduced by Reps. Iden, Sheppard, Hoitenga and Kesto and referred to the Committee on Law and Justice.
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) "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), (4),
(7), (9), (10), and (14), 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), (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.
(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 must be
utilized
in lieu of the fair market value.
(ii) The fair market value of the property on the date of
sentencing. However, if the fair market value of the property
cannot be determined or is impractical to ascertain, then the
replacement
value of the property shall must
be utilized in lieu of
the fair market value.
(c) Pay the cost of the seizure or impoundment, or both.
(4) If a felony or misdemeanor violation of section 356(1)(h)
of the Michigan penal code, 1931 PA 328, MCL 750.356, results in a
loss of rental income to the victim because the violation rendered
rental property owned by the victim uninhabitable or unfit for its
intended purpose, the court shall require that the defendant pay an
amount equal to any loss of rental income sustained by the victim.
(5) (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.
(6) (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.
(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, the
court shall order that
the 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. Services that are subject to
restitution under this subsection include, but are not limited to,
shelter, food, clothing, and transportation. However, an order of
restitution
shall must require that all restitution to a victim or
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 must 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 must
be set off against any
amount later recovered as compensatory damages by the victim or the
victim's
estate in any federal or state civil proceeding and shall
must reduce the amount payable to a victim or a victim's estate by
an award from the crime victim services commission made after an
order of restitution under this section.
(11) (10)
If not otherwise provided by the
court under this
subsection,
restitution shall must be made immediately. However,
the court may require that the defendant make restitution under
this section within a specified period or in specified
installments.
(12) (11)
If the defendant is placed on
probation or paroled
or the court imposes a conditional sentence under section 3 of this
chapter,
any restitution ordered under this section shall must be
a
condition of that probation, parole, or sentence. The court may
revoke probation or impose imprisonment under the conditional
sentence and the parole board may revoke parole if the defendant
fails to comply with the order and if the defendant has not made a
good faith effort to comply with the order. In determining whether
to revoke probation or parole or impose imprisonment, the court or
parole board shall consider the defendant's employment status,
earning ability, and financial resources, the willfulness of the
defendant's failure to pay, and any other special circumstances
that may have a bearing on the defendant's ability to pay.
(13) (12)
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.
(14) (13)
An order of restitution entered
under this section
remains
is effective until it is satisfied in full. An order of
restitution is a judgment and lien against all property of the
defendant for the amount specified in the order of restitution. The
lien may be recorded as provided by law. An order of restitution
may be enforced by the prosecuting attorney, a victim, a victim's
estate, or any other person or entity named in the order to receive
the restitution in the same manner as a judgment in a civil action
or a lien.
(15) (14)
Notwithstanding any other provision
of this section,
a
defendant shall must not be imprisoned, jailed, or incarcerated
for a violation of probation or parole or otherwise for failure to
pay restitution as ordered under this section unless the court or
parole board determines that the defendant has the resources to pay
the ordered restitution and has not made a good faith effort to do
so.
(16) (15)
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
must 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 must include a statement of the amount of the
arrearage and any reasons for the arrearage known by the probation
officer. The probation officer shall immediately provide a copy of
the report 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.
(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.
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 Senate Bill No. ____ or House Bill No. 5008 (request no.
03521'17) of the 99th Legislature is enacted into law.