April 12, 2016, Introduced by Senators JONES, O'BRIEN, SCHUITMAKER and HORN and referred to the Committee on Judiciary.
A bill to amend 1985 PA 87, entitled
"William Van Regenmorter crime victim's rights act,"
by amending sections 16, 16a, 44, 44a, 45, and 76 (MCL 780.766,
780.766a, 780.794, 780.794a, 780.795, and 780.826), sections 16,
44, and 76 as amended by 2013 PA 139, sections 16a and 44a as
amended by 2006 PA 461, and section 45 as amended by 1996 PA 562;
and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 16. (1) As used in this section only, "victim" means an
individual who suffers direct or threatened physical, financial, or
emotional
harm as a result of the commission of a crime.
defendant's course of conduct. As used in subsections (2), (3),
(6),
(8), (9), (7), (9), (10), and (13) (14) only, 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 crime.the defendant's
course of conduct.
(2)
Except as provided in subsection (8), (9), when sentencing
a defendant convicted of a crime, 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 gave rise to the conviction or to those entitled
to inherit the victim's estate. For an offense that is resolved by
assignment of the defendant to youthful trainee status, by a
delayed sentence or deferred judgment of guilt, or in another way
that is not an acquittal or unconditional dismissal, the court
shall order the restitution required under this section.
(3) If a crime results in damage to or loss or destruction of
property of a victim of the crime or results in the seizure or
impoundment of property of a victim of the crime, the order of
restitution shall 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 damaged personal or real property can be repaired to
restore the property to its condition before the defendant's or
respondent's course of criminal 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
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.
(d) (c)
Pay the costs of the seizure or
impoundment, or both.
(4) If a crime results in physical or psychological injury to
a victim, the order of restitution shall require that the defendant
do 1 or more of the following, as applicable:
(a) Pay an amount equal to the reasonably determined cost of
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
physical and occupational therapy and rehabilitation actually
incurred and reasonably expected to be incurred.
(c) Reimburse the victim or those entitled to inherit the
victim's estate for after-tax income loss suffered by the victim as
a result of the crime.
(d) Pay an amount equal to the reasonably determined cost of
psychological and medical treatment for members of the victim's
family actually incurred and reasonably expected to be incurred as
a result of the crime.
(e) Pay an amount equal to the reasonably determined costs of
homemaking and child care expenses actually incurred and reasonably
expected to be incurred as a result of the crime or, if homemaking
or child care is provided without compensation by a relative,
friend, or any other person, an amount equal to the costs that
would reasonably be incurred as a result of the crime 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 crime resulting in bodily injury also results in the
death of a victim 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) When sentencing a defendant convicted of an offense
described in chapter LXVIIA of the Michigan penal code, 1931 PA
328, MCL 750.462a to 750.462h, the court shall order the defendant
to pay all of the following:
(a) Lost income, calculated by whichever of the following
methods results in the largest amount:
(i) The gross amount received by the defendant from or the
value to the defendant of the victim's labor or services.
(ii) The value of the victim's labor or services as calculated
under the workforce opportunity wage act, 2014 PA 138, MCL 408.411
to 408.424, or the federal minimum wage, whichever results in the
largest value.
(b) The cost of transportation, temporary housing, and child
care expenses incurred by the victim because of the offense.
(c) Attorney fees and other costs and expenses incurred by the
victim because of the offense, including, but not limited to, costs
and expenses relating to assisting the investigation of the offense
and for attendance at related court proceedings as follows:
(i) Wages lost.
(ii) Child care.
(iii) Transportation.
(iv) Parking.
(d) Any other loss suffered by the victim as a proximate
result of the offense.
(7) (6)
If the a victim
or victim's estate consents
or those
entitled to inherit the victim's estate consent, the order of
restitution may require that the defendant make restitution in
services in lieu of money.
(8) (7)
If the a victim
is deceased or dies, the court shall
order that the restitution or remaining restitution be made to
those
entitled to inherit from 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 a
victim or those entitled to
inherit 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 a victim
as
a result of the crime. 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 those
entitled to inherit the 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 to those entitled to inherit the victim's estate if the
victim
has or those
entitled to inherit the victim's estate
has
have
received or is are to
receive compensation for that loss, and
the court shall state on the record with specificity the reasons
for its action.
(10) (9)
Any amount paid to a victim or those entitled to
inherit the 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 those entitled to inherit the
victim's estate in any federal or state civil proceeding and shall
reduce
the amount payable to a victim or a those entitled to
inherit the 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 as provided in section
3 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL
769.3, 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
complied
or made a good faith 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)
Subject to subsection (18), (19), 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, 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.
(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 those
entitled to inherit the 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 good-faith
effort to do so.
(16) (15)
If the court determines that a
juvenile is or will
be unable to pay all of the restitution ordered to be paid 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:
(a) "Juvenile" means a person within the court's jurisdiction
under section 2d or 4 of chapter XIIA of the probate code of 1939,
1939 PA 288, MCL 712A.2d and 712A.4.
(b) "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
parent's financial resources and the burden that the payment of
restitution will impose, with due regard to any other moral or
legal financial obligations 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 and if the court also determines
that modifying the method of payment will not impose a manifest
hardship on the victim.
(19) (18)
In each case in which payment of
restitution is
ordered as a condition of probation, the court shall order any
employed defendant to make regularly scheduled restitution
payments. If the defendant misses 2 or more regularly scheduled
payments, the court shall order the defendant to execute a wage
assignment to pay the restitution. 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. If the
restitution was ordered to be made within a specific period of
time, the 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 probationary period
expires. If the probation officer determines at any review 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 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 known by the probation officer.
The probation officer shall immediately provide a copy of the
report or petition 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.
(20) (19)
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 remanded to the department's jurisdiction.
(21) (20)
The court shall not impose a fee on
a victim, those
entitled to inherit the victim's estate, or prosecuting attorney
for enforcing an order of restitution.
(22) (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.
(23) (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.
(24) (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.
(25) (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. 16a. (1) If a person is subject to any combination of
fines, costs, restitution, assessments, probation or parole
supervision fees, or other payments arising out of the same
criminal proceeding, money collected from that person for the
payment of fines, costs, restitution, assessments, probation or
parole supervision fees, or other payments ordered to be paid in
that proceeding shall be allocated as provided in this section. If
a person is subject to fines, costs, restitution, assessments,
probation or parole supervision fees, or other payments in more
than 1 proceeding in a court and if a person making a payment on
the fines, costs, restitution, assessments, probation or parole
supervision fees, or other payments does not indicate the
proceeding for which the payment is made, the court shall first
apply the money paid to a proceeding in which there is unpaid
restitution to be allocated as provided in this section.
(2) Except as otherwise provided in this subsection, if a
person is subject to payment of victim payments and any combination
of other fines, costs, assessments, probation or parole supervision
fees,
or other payments, 50% of each payment collected by the court
from that person shall be applied to payment of ordered victim
payments, and the balance shall be applied to payment of fines,
costs, supervision fees, and other assessments or payments. If a
person making a payment indicates that the payment is to be applied
to victim payments, or if the payment is received as a result of a
wage assignment under section 16 or from the department of
corrections or sheriff under section 17a, the payment shall first
be applied to victim payments. If any fines, costs, supervision
fees, or other assessments or payments remain unpaid after all of
the victim payments have been paid, any additional money collected
shall be applied to payment of those fines, costs, supervision
fees, or other assessments or payments. If any victim payments
remain unpaid after all of the fines, costs, supervision fees, or
other assessments or payments have been paid, any additional money
collected shall be applied to payment of those victim payments.
(3) In cases involving prosecutions for violations of state
law, money allocated under subsection (2) for payment of fines,
costs, probation and parole supervision fees, 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 by 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 probation or parole supervision fees.
(e) Payment of assessments and other payments, including
reimbursement to third parties who reimbursed a victim for his or
her loss.
(4) In cases involving prosecutions for violations of local
ordinances, 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 by 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) As used in this section, "victim payment" means
restitution ordered to be paid to the victim or to those entitled
to inherit 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. 44. (1) As used in this section only:
(a) "Offense" means a violation of a penal law of this state
or a violation 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 an offense. juvenile's
course of conduct. As used
in subsections (2), (3), (6), (8), (9), and (13) only, 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 an
offense.the juvenile's course of conduct.
(2) Except as provided in subsection (8), at the dispositional
hearing or sentencing for an offense, the court shall order, in
addition to or in lieu of any other disposition or penalty
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 conviction or to those entitled to inherit the
victim's estate. For an offense that is resolved informally by
means of a consent calendar diversion or by another informal method
that does not result in a dispositional hearing, by assignment to
youthful trainee status, by a delayed sentence or deferred judgment
of guilt, or in another way that is not an acquittal or
unconditional dismissal, the court shall order the restitution
required under this section.
(3) If an offense results in damage to or loss or destruction
of property of a victim of the offense or results in the seizure or
impoundment of property of a victim of the offense, the order of
restitution shall require that the juvenile or respondent 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 or
respondent's course of criminal 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 an offense results in physical or psychological injury
to a victim, the order of restitution 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
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
physical and occupational therapy and rehabilitation actually
incurred and reasonably expected to be incurred.
(c) Reimburse the victim or those entitled to inherit the
victim's estate for after-tax income loss suffered by the victim as
a result of the offense.
(d) Pay an amount equal to the reasonably determined cost of
psychological and medical treatment for members of the victim's
family actually incurred or reasonably expected to be incurred as a
result of the offense.
(e) Pay an amount equal to the reasonably determined costs of
homemaking and child care expenses actually incurred or reasonably
expected to be incurred as a result of the offense or, if
homemaking or child care is provided without compensation by a
relative, friend, or any other person, an amount equal to the costs
that would reasonably be incurred as a result of the 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 an offense resulting in bodily injury also results in
the death of a victim 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 or those
entitled to inherit the victim's estate consent, 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 those
entitled
to inherit from the victim's estate.
(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 a
victim or those entitled to
inherit 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 a victim
as
a result of the 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 those
entitled to inherit the 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 those entitled to inherit the victim's estate if the
victim
or victim's estate has or
those entitled to inherit the
victim's
estate have received or is are to
receive compensation for
that loss, and the court shall state on the record with specificity
the reasons for its action.
(9) Any amount paid to a victim or those entitled to inherit
the 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 those entitled to inherit the victim's
estate in any federal or state civil proceeding and shall reduce
the
amount payable to a victim or a those
entitled to inherit the
victim's estate by an award from the crime 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
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) Subject to subsection (18), 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, 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 those entitled
to inherit the 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 or imprisoned for a violation of
probation or parole 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 and the burden that the payment of restitution
will impose, with due regard to any other moral or legal financial
obligations 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 the method of 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
probationary period expires. If the juvenile caseworker or
probation officer determines at any review 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 known by the juvenile caseworker
or probation officer. The juvenile caseworker or probation officer
shall immediately provide a copy of the report or petition 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, those
entitled to inherit the 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 juvenile 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 juvenile
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 juvenile 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:offense:
(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. 44a. (1) If a juvenile is subject to any combination of
fines, costs, restitution, assessments, probation or parole
supervision fees, or other payments arising out of the same
criminal
proceeding, adjudication, money collected from that
juvenile or his or her parent or parents for the payment of fines,
costs, restitution, assessments, probation or parole supervision
fees, or other payments ordered to be paid in that proceeding shall
be allocated as provided in this section. If a person is subject to
fines, costs, restitution, assessments, probation or parole
supervision fees, or other payments in more than 1 proceeding in a
court and if a person making a payment on the fines, costs,
restitution, assessments, probation or parole supervision fees, or
other payments does not indicate the proceeding for which the
payment is made, the court shall first apply the money paid to a
proceeding in which there is unpaid restitution to be allocated as
provided in this section.
(2) Except as otherwise provided in this subsection, if a
juvenile is subject to payment of victim payments and any
combination of other fines, costs, assessments, probation or parole
supervision fees, or other payments, 50% of each payment collected
by
the court from that juvenile shall
be applied to payment of
ordered victim payments, and the balance shall be applied to
payment of fines, costs, supervision fees, and other assessments or
payments. If a person making a payment indicates that the payment
is to be applied to victim payments, or if the payment is received
as a result of a wage assignment under section 44 or from the
department of corrections, sheriff, department of health and human
services, or county juvenile agency under section 46b, the payment
shall first be applied to victim payments. If any fines, costs,
supervision fees, or other assessments or payments remain unpaid
after all of the victim payments have been paid, any additional
money collected shall be applied to payment of those fines, costs,
supervision fees, or other assessments or payments. If any victim
payments remain unpaid after all of the fines, costs, supervision
fees, or other assessments or payments have been paid, any
additional money collected shall be applied to payment of those
victim payments.
(3) In cases involving prosecutions for violations of state
law, money allocated under subsection (2) for payment of fines,
costs, probation and parole supervision fees, 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 by 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 probation or parole supervision fees.
(e) Payment of assessments and other payments, including
reimbursement to third parties who reimbursed a victim for his or
her loss.
(4) In cases involving prosecutions for violations of local
ordinances, 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 by 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) As used in this section, "victim payment" means
restitution ordered to be paid to the victim or to those entitled
to inherit 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. 45. (1) In determining the amount of restitution to order
under section 44, the court shall consider the amount of the loss
sustained by any victim as a result of the offense or the
juvenile's course of conduct. In determining whether to order the
juvenile's supervisory parent to pay restitution under section
44(15), the court shall consider the financial resources of the
juvenile's supervisory parent and the other factors specified in
section 44(16).
(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 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 44(16) shall be on the supervisory parent.
Sec. 76. (1) As used in this section only:
(a) "Misdemeanor" means a violation of a law of this state or
a local ordinance that is punishable by imprisonment for not more
than 1 year or a fine that is not a civil fine, but that is not a
felony.
(b) "Victim" means an individual who suffers direct or
threatened physical, financial, or emotional harm as a result of
the
commission of a misdemeanor. defendant's
course of conduct. As
used in subsections (2), (3), (6), (8), (9), and (13) only, 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
misdemeanor.the defendant's course of conduct.
(2) Except as provided in subsection (8), when sentencing a
defendant convicted of a misdemeanor, 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 gave rise to the conviction or to those entitled
to inherit the victim's estate. For an offense that is resolved by
assignment of the defendant to youthful trainee status, by a
delayed sentence or deferred judgment of guilt, or in another way
that is not an acquittal or unconditional dismissal, the court
shall order the restitution required under this section.
(3) If a misdemeanor results in damage to or loss or
destruction of property of a victim of the misdemeanor or results
in the seizure or impoundment of property of a victim of the
misdemeanor, the order of restitution shall require that the
defendant or respondent 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 defendant's or
respondent's course of criminal 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
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.
(d) (c)
Pay the costs of the seizure or
impoundment, or both.
(4) If a misdemeanor results in physical or psychological
injury to a victim, the order of restitution shall require that the
defendant do 1 or more of the following, as applicable:
(a) Pay an amount equal to the reasonably determined cost of
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
physical and occupational therapy and rehabilitation actually
incurred and reasonably expected to be incurred.
(c) Reimburse the victim or those entitled to inherit the
victim's estate for after-tax income loss suffered by the victim as
a result of the misdemeanor.
(d) Pay an amount equal to the reasonably determined cost of
psychological and medical treatment for members of the victim's
family actually incurred and reasonably expected to be incurred as
a result of the misdemeanor.
(e) Pay an amount equal to the reasonably determined costs of
homemaking and child care expenses actually incurred and reasonably
expected to be incurred as a result of the misdemeanor or, if
homemaking or child care is provided without compensation by a
relative, friend, or any other person, an amount equal to the costs
that would reasonably be incurred as a result of the misdemeanor
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 crime resulting in bodily injury also results in the
death of a victim 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 or those
entitled to inherit the victim's estate consent, the order of
restitution may require that the defendant 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 those
entitled
to inherit from the victim's estate.
(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 a
victim or those entitled to
inherit 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 a victim
as
a result of the misdemeanor. 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 those
entitled to inherit the 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 those entitled to inherit the victim's estate if the
victim
or victim's estate has or
those entitled to inherit the
victim's
estate have received or is are to
receive compensation for
that loss, and the court shall state on the record with specificity
the reasons for its action.
(9) Any amount paid to a victim or those entitled to inherit
the victim's estate under an order of restitution shall be set off
against any amount later recovered as compensatory damages by the
victim or those entitled to inherit the victim's estate in any
federal or state civil proceeding and shall reduce the amount
payable
to a victim or a those
entitled to inherit the victim's
estate by an award from the crime 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 defendant make restitution under this
section within a specified period or in specified installments.
(11) If the defendant is placed on probation or the court
imposes a conditional sentence as provided in section 3 of chapter
IX of the code of criminal procedure, 1927 PA 175, MCL 769.3, any
restitution ordered under this section shall be a condition of that
probation or sentence. The court may revoke probation or impose
imprisonment
under the conditional sentence if the defendant fails
to
comply with the order and if the defendant has not complied or
made
a good faith good-faith effort to comply with the order. In
determining whether to revoke probation or impose imprisonment, the
court 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.
(12) Subject to subsection (15), 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, 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
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 those
entitled to inherit the victim's estate, or any other person or
entity named in the order to receive restitution in the same manner
as a judgment in a civil action or a lien.
(14) Notwithstanding any other provision of this section, a
defendant shall not be imprisoned, jailed, or incarcerated for a
violation of probation or otherwise for failure to pay restitution
as ordered under this section unless the court determines that the
defendant has the resources to pay the ordered restitution and has
not
made a good faith good-faith
effort to do so.
(15) In each case in which payment of restitution is ordered
as a condition of probation, the court shall order any employed
defendant to make regularly scheduled restitution payments. If the
defendant misses 2 or more regularly scheduled payments, the court
shall order the defendant to execute a wage assignment to pay the
restitution. 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. If the restitution was
ordered to be made within a specific period of time, the 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 probationary period expires. If the
probation officer determines at any review 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 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 known by the probation officer. The probation officer
shall immediately provide a copy of the report or petition 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.
(16) If the court determines that 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 court determines that the defendant is
remanded to the department's jurisdiction.
(17) The court shall not impose a fee on a victim, those
entitled to inherit the victim's estate, or prosecuting attorney
for enforcing an order of restitution.
(18) 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.
(19) 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.
(20) 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.
(21) If the victim is a minor, the order of restitution shall
require the defendant 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.
Enacting section 1. Sections 16b and 80 of the William Van
Regenorter crime victim's rights act, 1985 PA 87, MCL 780.766b and
780.830, are repealed.
Enacting section 2. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 3. 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. 874.
(b) Senate Bill No. 875.
(c) Senate Bill No. 876.
(d) Senate Bill No.____ or House Bill No.____ (request no.
01052'15).
(e) Senate Bill No.____ or House Bill No.____ (request no.
01053'15).
(f) Senate Bill No. 877.