HB-4736, As Passed House, September 9, 2009
HOUSE BILL NO. 4736
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, and by adding section 30 to chapter IV.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 30. (1) To facilitate compliance with sections 11 and 13
of the identity theft protection act, 2004 PA 452, MCL 445.71 and
445.73, and 15 USC 1681g, a bona fide victim of identity theft is
entitled to file a police report with a law enforcement agency in a
jurisdiction where the alleged violation of identity theft may be
prosecuted as provided under section 10c of chapter II, and to
obtain a copy of that report from that law enforcement agency.
(2) The department of state police shall develop and make
available to law enforcement agencies and victims of identity theft
a standard identity theft incident report form.
(3) As used in this section, "identity theft" means that term
as defined in section 3 of the identity theft protection act, 2004
PA 453, MCL 445.63.
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.
purposes of subsections (2), (3), (6),
(8), (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.
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
(a) Return the property to the owner of the property or to a
person designated by the owner.
(b) If return of the property under subdivision (a) is
impossible, impractical, or inadequate, pay an amount equal to the
greater of subparagraph (i) or (ii), less the value, determined as of
the date the property is returned, of that property or any part of
the property that is returned:
(i) The fair market value of the property on the date of the
damage, loss, or destruction. However, if the fair market value of
the property cannot be determined or is impractical to ascertain,
then the replacement value of the property shall be utilized in
lieu of the fair market value.
(ii) The fair market value of the property on the date of
sentencing. However, if the fair market value of the property
cannot be determined or is impractical to ascertain, then the
replacement value of the property shall be utilized in lieu of the
fair market value.
(c) Pay the cost of the seizure or impoundment, or both.
(4) If a felony, misdemeanor, or ordinance violation results
in physical or psychological injury to a victim, the order of
restitution may require that the defendant do 1 or more of the
following, as applicable:
(a) Pay an amount equal to the cost of actual medical and
related professional services and devices relating to physical and
(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
(e) Pay an amount equal to the cost of actual homemaking and
child care expenses incurred as a result of the felony,
misdemeanor, or ordinance violation.
(5) If a felony, misdemeanor, or ordinance violation resulting
in bodily injury also results in the death of a victim, the order
of restitution may require that the defendant pay an amount equal
to the cost of actual funeral and related services.
(6) If the victim or the victim's estate consents, the order
of restitution may require that the defendant make restitution in
services in lieu of money.
(7) If the victim is deceased, the court shall order that the
restitution be made to the victim's estate.
(8) If the victim is the victim of identity theft as that term
is defined in section 3 of the identity theft protection act, 2004
PA 452, MCL 445.63, then the court shall order restitution to
compensate the victim in full for the work done by the victim or
the victim's attorney, or both, to rectify the victim's financial
records and vital records and to ameliorate the effects of the
identity theft on the victim's financial affairs, including, but
not limited to, his or her credit history, credit rating, or credit
The court shall order restitution
to the crime victim
services commission or to any individuals, partnerships,
corporations, associations, governmental entities, or other legal
entities that have compensated the victim or the victim's estate
for a loss incurred by the victim to the extent of the compensation
paid for that loss. The court shall also order restitution for the
costs of services provided to persons or entities that have
provided services to the victim as a result of the felony,
misdemeanor, or ordinance violation. Services that are subject to
restitution under this subsection include, but are not limited to,
shelter, food, clothing, and transportation. However, an order of
restitution shall require that all restitution to a victim or a
victim's estate under the order be made before any restitution to
any other person or entity under that order is made. The court
shall not order restitution to be paid to a victim or victim's
estate if the victim or victim's estate has received or is to
receive compensation for that loss, and the court shall state on
the record with specificity the reasons for its action. If an
entity entitled to restitution under this subsection for
compensating the victim or the victim's estate cannot or refuses to
be reimbursed for that compensation, the restitution paid for that
entity shall be deposited by the state treasurer in the crime
victim's rights fund created under section 4 of 1989 PA 196, MCL
780.904, or its successor fund.
Any amount paid to a victim or a
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.
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.
If the defendant is placed on
probation or paroled
or the court imposes a conditional sentence under section 3 of this
chapter, any restitution ordered under this section shall be a
condition of that probation, parole, or sentence. The court may
revoke probation or impose imprisonment under the conditional
sentence and the parole board may revoke parole if the defendant
fails to comply with the order and if the defendant has not made a
good faith effort to comply with the order. In determining whether
to revoke probation or parole or impose imprisonment, the court or
parole board shall consider the defendant's employment status,
earning ability, and financial resources, the willfulness of the
defendant's failure to pay, and any other special circumstances
that may have a bearing on the defendant's ability to pay.
A defendant who is required to pay
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.
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.
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
In each case in which payment of
ordered as a condition of probation, the probation officer assigned
to the case shall review the case not less than twice yearly to
ensure that restitution is being paid as ordered. The final review
shall be conducted not less than 60 days before the probationary
period expires. If the probation officer determines that
House Bill No. 4736 (H-1) as amended September 9, 2009
restitution is not being paid as ordered, the probation officer
shall file a written report of the violation with the court on a
form prescribed by the state court administrative office. The
report shall include a statement of the amount of the arrearage and
any reasons for the arrearage known by the probation officer. The
probation officer shall immediately provide a copy of the report to
the prosecuting attorney. If a motion is filed or other proceedings
are initiated to enforce payment of restitution and the court
determines that restitution is not being paid or has not been paid
as ordered by the court, the court shall promptly take action
necessary to compel compliance.
If a defendant who is ordered to
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 January 1, 2010.]
Enacting section . This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) House Bill No. 4737.
(b) House Bill No. 4738.