Bill Text: MI HB5006 | 2017-2018 | 99th Legislature | Introduced
Bill Title: Juveniles; criminal procedure; lost rental income from rental property made uninhabitable or unfit for intended purpose by larceny; require. Amends secs. 30 & 31, ch. XIIA of 1939 PA 288 (MCL 712A.30 & 712A.31). TIE BAR WITH: HB 5008'17
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-09-27 - Bill Electronically Reproduced 09/26/2017 [HB5006 Detail]
Download: Michigan-2017-HB5006-Introduced.html
HOUSE BILL No. 5006
September 26, 2017, Introduced by Reps. Kesto, Sheppard, Hoitenga and Iden and referred to the Committee on Law and Justice.
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:
(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), (10), and (13), (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 juvenile offense for which restitution is ordered
under this section was a violation of section 356(1)(h) that
resulted in a loss of rental income to the victim because the
violation rendered the rental property owned by the victim
uninhabitable or unfit for its intended purpose, the court shall
require that the defendant pay an amount equal to any loss of
rental income sustained by the victim.
(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
must 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 must 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 1989 PA 196, MCL 780.904, of the Michigan Compiled
Laws,
or its successor fund.
(10) (9)
Any amount paid to a victim or
victim's estate under
an
order of restitution shall must
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
must 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 must 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 must 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
is 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 must 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 must
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 must
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 must 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
must 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
is 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 is on the supervisory parent.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5008 (request no.
03521'17) of the 99th Legislature is enacted into law.