Bill Text: MI HB4738 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Juveniles; criminal procedure; restitution of certain cost incurred by victims of identity theft; amend probate code of 1939 to require. Amends secs. 30 & 31, ch. XIIA of 1939 PA 288 (MCL 712A.30 & 712A.31). TIE BAR WITH: HB 4736'09, HB 4737'09
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced - Dead) 2009-09-10 - Referred To Committee On Judiciary [HB4738 Detail]
Download: Michigan-2009-HB4738-Engrossed.html
HB-4738, As Passed House, September 9, 2009
HOUSE BILL No. 4738
March 31, 2009, Introduced by Reps. Terry Brown, Sheltrown, Leland, Melton, Durhal, Meadows and Dean and referred to the Committee on Judiciary.
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
House Bill No. 4738 as amended September 9, 2009
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 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) Senate Bill No.____ or House Bill No. 4736(request no.
01595'09).
(b) Senate Bill No.____ or House Bill No. 4737(request no.
01595'09 a).
