HB-4736, As Passed House, September 9, 2009

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

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:

 

CHAPTER IV

 

     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.

 

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), (10), and (13)

 

(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 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


 

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.

 

     (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

 

score.

 

     (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 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 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 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 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 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 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.

 

     (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 January 1, 2010.]

     Enacting section [2]. 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.