HB-6098, As Passed House, June 24, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 6098

     A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

by amending sections 30 and 31 of chapter XIIA (MCL 712A.30 and

712A.31), as amended by 1996 PA 561.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XIIA

     Sec. 30. (1) For purposes of this section and section 31 of

this chapter:

     (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.

     (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. For purposes of subsections

(2), (3), (6), (8), (9), and (13) (10), and (14), 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.

     (2) Except as provided in subsection (8) (9), 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 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 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 value of the property on the date of the damage, loss,

or destruction.

     (ii) The value of the property on the date of disposition.

     (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 require that the

juvenile 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 juvenile

offense.

     (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 juvenile offense.

     (e) Pay an amount equal to the costs of actual homemaking and

child care expenses incurred as a result of the juvenile offense.

     (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.

     (6) If the 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 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, credit history, credit rating, or credit score.

(9) (8) The court shall order restitution to the crime victims

compensation board or to any individuals, partnerships,

corporations, associations, governmental entities, or any other

legal entities that have compensated the 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 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.

(10) (9) Any amount paid to a victim or 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 victims compensation board 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 juvenile make restitution under this

section within a specified period or in specified installments.

(12) (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 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.

(13) (12) A 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,

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

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.

(15) (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 effort to do so.

(16) (15) If the court determines that the juvenile is or will

be unable to pay all of the restitution ordered, after notice to

the juvenile's parent and an opportunity for the parent 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, 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.

(17) (16) If the court orders a parent to pay restitution

under subsection (15) (16), the court shall take into account the

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) (16), the

court shall provide for payment to be made in specified

installments and within a specified period of time.

(18) (17) A parent who has been ordered to pay restitution

under subsection (15) (16) 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.

(19) (18) In each case in which payment of restitution is

ordered as a condition of probation, 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. The final review shall be conducted not less than 60 days

before the expiration of the probationary period. If the juvenile

caseworker or probation officer determines 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. The

report 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 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.

(20) (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.

     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. In determining whether to order the juvenile's

supervisory parent to pay restitution under section 30(15) 30(16)

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) 30(17) 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) 30(17) of this chapter shall be

on the supervisory parent.

     Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 94th Legislature are

enacted into law:

     (a) House Bill No. 6096.

     (b) House Bill No. 6097.