NO. 57.  AN ACT RELATING TO A JUVENILE JUSTICE LEGISLATIVE OVERSIGHT COMMITTEE AND TO RESTITUTION PROCEDURES.

(S.15)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  3 V.S.A. § 3085c is amended to read:

§ 3085c.  COMMISSION ON JUVENILE JUSTICE

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(e)(1)  A juvenile justice policy subcommittee is created within the commission.  The subcommittee shall be composed of the following members:

(A)  the secretary of the agency of human services, who shall be the chair;

(B)  three representatives, who shall be appointed by the speaker of the house;

(C)  three senators, who shall be appointed by the committee on committees;

(D)  the secretary of the agency of administration;

(E)  the defender general;

(F)  a representative of the runaway youth coalition of Vermont;

(G)  a representative of the Vermont parent child center network;

(H)  a representative of the Vermont coalition of residential programs;

(I)  a representative of the department of developmental and mental health services’ designated community mental health centers;

(J)  a representative of the Vermont center for crime victim services;

(K)  a representative of the state’s attorneys’ association;

(L)  a representative from the judicial branch of state government; and

(M)  a representative from the police chiefs’ association.

(2)  The subcommittee shall:

(A)  Advise the commission on the development of a comprehensive juvenile justice system.

(B)  Hold monthly public meetings to determine how issues related to juvenile justice are impacting Vermont communities.

(C)  Coordinate with the children and family council for prevention programs on the juvenile justice block grant budget and on any other federal grants relating to juvenile justice.

(D)  Report to the governor and the general assembly no later than December 1 of each year.  The report shall include an evaluation of the strengths and weaknesses and successes and failures of the comprehensive juvenile justice and youthful offender system; recommendations to improve the program; and a detailed report on the development, implementation, and operation of the program.

(E)  Examine existing policy and, where needed, make policy recommendations in at least the following areas:  access to early care, education and prevention; effective use of Vermont’s home visiting and family support resources; provision of juvenile justice; coordination of out‑of‑schooltime services; and efforts to eradicate adolescent substance abuse.  

(f)  The departments of social and rehabilitation services and of corrections agency of human services shall provide the commission with administrative support.

(g)(f)  The juvenile justice commission, the juvenile justice policy subcommittee, the children and family council for prevention programs, and the governor’s cabinet for children and youth shall coordinate activities and, wherever possible, consolidate meetings to promote effective and efficient uses of resources and to minimize duplication.

(g)  Annually, the commission shall prepare a report of its findings and activities during the preceding year.  The report shall include a detailed description of the progress made on the development, implementation, and ongoing operation of the comprehensive juvenile justice and youthful offender system.  On or before December 1 of each year, the commission shall file its report with the governor, the general assembly, and the senate and house committees on judiciary, and make the report available to the public.

Sec. 2.  13 V.S.A. § 5361 is amended to read:

§ 5361.  CENTER FOR CRIME VICTIMS SERVICES

(a)  The center for crime victims services is created and shall be responsible for the following:

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(3)  Administer the victims compensation program and, the victims assistance program, and the restitution unit.

(4)  Assist in the development and administration of other programs and services for crime victims and witnesses, as needed.

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Sec. 3.  13 V.S.A. § 5362 is added to read:

§ 5362.  RESTITUTION UNIT

(a)  A restitution unit is created within the center for crime victims services for purposes of assuring that crime victims receive restitution when it is ordered by the court. 

(b)  The restitution unit shall administer the restitution fund established under section 5363 of this title.

(c)  The restitution unit shall have the authority to:

(1)  Collect restitution from the defendant when it is ordered by the court, deposit the funds collected into the restitution fund, and make payments to victims out of the fund. 

(2)  Bring an action to enforce a restitution order as a civil judgment under section 7043 of this title.

(3)  Share and access information, consistent with Vermont and federal law, from the court, the department of corrections, the department of taxes, and the department of employment and training in order to carry out its collection and enforcement functions.

 

 

Sec. 4.  13 V.S.A. § 5363 is added to read:

§ 5363.  CRIME VICTIMS’ RESTITUTION SPECIAL FUND

(a)  There is hereby established in the state treasury a fund to be known as the crime victims’ restitution special fund, to be administered by the restitution unit established by section 5362 of this title, and from which payments may be made to provide restitution to crime victims.

(b)  There shall be deposited into the fund:

(1)  All monies, except for monies given to the victims compensation fund under subdivisions (h)(3) and (j)(2) of section 7043 of this title, collected from persons against whom restitution has been ordered pursuant to section 7043 of this title.

(2)  All fees imposed by the clerk of court and designated for deposit into the fund pursuant to section 7282 of this title.

(3)  Such sums as may be appropriated to the fund by the general assembly. 

(c)  All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund.  Disbursements from the fund shall be made by the state treasurer on warrants drawn by the commissioner of finance and management. 

(d)  Notwithstanding anything in this section or any other provision of law to the contrary, revenue from the surcharge fees deposited into the crime victims’ restitution special fund shall be used exclusively to support the restitution unit and restitution for crime victims, and for no other purpose.

Sec. 5.  13 V.S.A. § 7041 is amended to read:

§ 7041.  DEFERRED SENTENCE

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(b)  Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence.  Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent, except that a person shall not be discharged from probation imposed under this section until restitution has been paid in full, absent a finding of good cause by the court.  Upon discharge the record of the criminal proceedings shall be expunged as if an application pursuant to section 5538 of Title 33 had been granted, except that the record shall not be expunged until restitution has been paid in full, absent a finding of good cause by the court.

(c)(1)  A deferred sentence imposed under subsection (a) of this section may include a restitution order issued pursuant to section 7043 of this title.  If a court determines that a person subject to a deferred sentence has failed to comply with a restitution order issued under section 7043 of this title, the court may impose sentence upon finding the defendant has the present ability to pay.  Nonpayment of restitution shall not constitute grounds for imposition of the underlying sentence.

(2)  No sentence shall be imposed or continued pursuant to this subsection after compliance with the restitution order.  This subsection shall not apply to the violation of any condition of probation other than a failure to comply with a restitution order.

Sec. 6.  13 V.S.A. § 7043 is amended to read:

§ 7043.  RESTITUTION

(a)(1)  Restitution shall be considered in every case in which a victim of a crime, as defined in subdivision 5301(4) of this title, has suffered a material loss or has incurred medical expenses.  Whether or not any other sentence or disposition is imposed, a term of probation may be ordered, with restitution as the only condition

(2)  For purposes of this section, “material loss” means uninsured property loss, uninsured out-of-pocket monetary loss, and uninsured medical expenses.

(b)  When ordered, restitution may include:

(1)  return of property wrongfully taken from the victim;

(2)  cash, credit card, or installment payments, including interest at the statutory rate for civil judgments, or voluntarily assigned wages or assets, paid to the victim or to the victims’ compensation fund established under chapter 167 of this title to compensate for damages to the victim’s property or person restitution unit; or

(3)  payments in kind, if acceptable to the victim.

(c)  In awarding restitution, the court shall consider the ability of the defendant to pay.

(d)  Restitution, if imposed, shall be due at the time of sentencing, unless the court finds on the record that there is good cause for an extension, and made to the victim, or if the victim has died, to the victim’s estate.  To the extent that the victims’ compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of this title, restitution, if imposed, shall be paid to the victims’ compensation fund.

(e)  If not paid at the time of sentencing, restitution may be enforced as conditions of probation, supervised community sentence, furlough, preapproved furlough or parole if the convicted person is sentenced to preapproved furlough, probation or supervised community sentence, or is sentenced to imprisonment and later placed on parole, or otherwise in the manner of civil judgments.  Unless otherwise specifically ordered by the court, an order for restitution as a condition of preapproved furlough, probation or supervised community sentence shall remain in effect if the defendant violates preapproved furlough, probation or supervised community sentence and is sentenced to imprisonment. 

(f)  When restitution is not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(g)  No restitution ordered under this section precludes a person granted such relief from pursuing an independent civil action.

(h)  The court may modify a restitution order if, upon motion by the state’s attorney, the center for crime victims services, the victim, or the defendant, the court finds that a modification is warranted by a substantial change in circumstances.

(i)(1)  If the defendant fails to pay restitution as ordered by the court, the victim, the center for crime victims services, the department of corrections, or the state’s attorney may notify the court of the defendant’s default.  The court shall set the matter for hearing, and shall provide notice thereof to the victim, the department of corrections, the state, and the defendant.  If the court determines the defendant has failed to comply with the restitution order, the court may take any action the court deems necessary to ensure the defendant will make the required restitution payments, including:

(A)  amending or modifying the court’s restitution order;

(B)  requiring the disclosure of assets and income by the defendant, in which case the defendant may voluntarily assign wages or assets to satisfy the compliance requirement;

(C)  upon finding the defendant has the ability to pay, revoking the defendant’s probation, and ordering the defendant to serve all or part of the underlying sentence.

(2)  Any monies owed by the state to an offender who is under a restitution order, including, but not limited to, lottery winnings and tax refunds, shall be assigned to discharge the restitution order to the full extent of the unpaid total financial losses, regardless of the payment schedule in the restitution payment plan.  In the case of a tax refund, the monies shall be paid pursuant to subchapter 12 of chapter 151 of Title 32.  Monies paid under this subsection shall be paid directly to the department of corrections, without any reductions for collection or supervision fees.

(j)  The department of corrections shall, in conjunction with the center for crime victims services, establish guidelines for assessing the defendant’s ability to pay restitution.  The guidelines shall describe pertinent financial information to be collected, procedures for the verification of information, staff responsible for collecting the information, methods of relaying that information to the court, and a recommended payment schedule.

(k)  A standard condition of probation, parole, supervised community sentence, preapproved furlough or other sentence shall be a requirement that the defendant comply with all requests from the department of corrections or the center for crime victims services to furnish information, including financial information, which will enable the department to collect restitution from the defendant.

(l)  The court shall not discharge a defendant from probation until restitution has been paid in full, absent a finding of good cause by the court.

(m)  A restitution obligation shall be nondischargeable, to the maximum extent provided under 11 U.S.C. § 523, in the United States Bankruptcy Court.

(n)  A transfer of property made with the intent to avoid a restitution obligation shall be deemed a fraudulent conveyance for purposes of chapter 57 of Title 9.

(c)  In awarding restitution, the court shall make findings with respect to:

(1)  The total amount of the material loss incurred by the victim.  If sufficient documentation of the material loss is not available at the time of sentencing, the court shall set a hearing on the issue, and notice thereof shall be provided to the defendant. 

(2)  The defendant’s current ability to pay restitution, based on financial information which the defendant has filed with the court.

(d)(1)  An order of restitution shall establish the amount of the material loss incurred by the victim, which shall be the restitution judgment order.  In the event the defendant is unable to pay the restitution judgment order at the time of sentencing, the court shall establish a payment schedule for the defendant based upon the defendant’s current and reasonably foreseeable ability to pay, subject to modification under subsection (k) of this section.

(2)(A)  Every order of restitution shall:

(i)  include the defendant’s name, address and social security number;

(ii)  include the name, address and telephone number of the defendant’s employer; and

(iii)  require the defendant, until his or her restitution obligation is satisfied, to notify the restitution unit within 30 days if the defendant’s address or employment changes, including providing the name, address, and telephone number of each new employer.

(B)  A defendant’s social security number shall only be used by the restitution unit for the purpose of facilitating the collection of restitution, and shall not otherwise be released.   

(e)(1)  If not paid at the time of sentencing, restitution may be ordered as a condition of probation, supervised community sentence, furlough, preapproved furlough, or parole if the convicted person is sentenced to preapproved furlough, probation, or supervised community sentence, or is sentenced to imprisonment and later placed on parole.  A person shall not be placed on probation solely for purposes of paying restitution.  A defendant may not be charged with a violation of probation, furlough, or parole for nonpayment of restitution.

(2)  The department of corrections shall work collaboratively with the restitution unit to assist with the collection of restitution.  The department shall provide the restitution unit with information about the location and employment status of the defendant.

(f)  When restitution is requested and not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(g)  Restitution ordered under this section shall not preclude a person from pursuing an independent civil action for all claims not covered by the restitution order.

(h)(1)  The court shall transmit a copy of a restitution order to the restitution unit, which shall make payment to the victim from the restitution fund established under section 5363 of this title.  If the victim has died, payment shall be made to the victim’s estate. 

(2)  A payment out of the restitution fund shall not exceed $10.000.00, except as provided in subdivision (j)(2) of this section.

(3)  To the extent that the victims compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of this title, restitution, if imposed, shall be paid to the restitution unit, which shall make payment to the victims compensation fund.

(i)  The restitution unit may bring an action to enforce a restitution order against a defendant in the superior or small claims court of the county where the order was issued.  In an action under this subsection, a restitution order issued by the district court shall be enforceable in superior or small claims court in the same manner as a civil judgment.  Superior and small claims court filing fees shall be waived for an action under this subsection.

(j)(1)  All restitution payments by a defendant shall be made to the restitution unit.

(2)  If the restitution unit collects in excess of $10,000.00 from the defendant, the amount in excess of $10,000.00 shall be paid to the victim until the victim has received the full amount of the restitution order.  Any excess remaining after the victim has received the full amount of the restitution order shall be divided between the victims compensation fund and the restitution unit in proportion to the amount which each paid to the victim.  

(k)  The sentencing court may modify the payment schedule of a restitution order if, upon motion by the restitution unit or the defendant, the court finds that modification is warranted by a substantial change in circumstances.

(l)  If the defendant fails to pay restitution as ordered by the court, the restitution unit may file an action to enforce the restitution order in superior or small claims court.  The court shall set the matter for hearing and shall provide notice to the restitution unit, the victim, and the defendant.  If the court determines the defendant has failed to comply with the restitution order, the court may take any action the court deems necessary to ensure the defendant will make the required restitution payment, including:

(1)  amending the payment schedule of the restitution order;

(2)  ordering, in compliance with the procedures required in Rule 4.1 of the Vermont Rules of Civil Procedure, the disclosure, attachment, and sale of assets and accounts owned by the defendant;

(3)  ordering the defendant’s wages withheld pursuant to subsection (n) of this section; or

(4)  ordering the suspension of any recreational licenses owned by the defendant.

(m)(1)  Any monies owed by the state to an offender who is under a restitution order, including lottery winnings and tax refunds, shall be used to discharge the restitution order to the full extent of the unpaid total financial losses, regardless of the payment schedule in the restitution payment plan. 

(2)  When an offender is entitled to a tax refund, any restitution owed by the offender shall be withheld from the refund pursuant to subchapter 12 of chapter 151 of Title 32. 

(3)(A)  For all Vermont lottery games, the lottery commission shall, before issuing prize money of $500.00 or more to a winner, determine whether the winner has an outstanding restitution order.  If the winner owes restitution, the lottery commission shall withhold the entire amount of winnings and pay it to the restitution unit.  The restitution unit shall offset the winnings by the amount of restitution owed and the remainder of the winnings, if any, shall be sent to the winner.  The winner shall be notified by the restitution unit of the offset prior to payment to the victim and given a period not to exceed 20 days to contest the accuracy of the information.

(B)  The restitution unit shall inform the lottery commission of persons with outstanding restitution orders upon request.  Each person subject to such an order shall be identified by name, address, and Social Security number.

(4)  Monies paid under this subsection shall be paid directly to the restitution unit, which shall notify the victim that the monies have been received.

(n)(1)  The sentencing court at the time of sentencing, or the superior or small claims court in a subsequent proceeding, may issue a wage withholding order directing current and subsequent employers of the defendant to pay a portion of the defendant’s wages directly to the restitution unit until the defendant’s restitution obligation is satisfied.  The wages of the defendant shall be exempt as follows:

(A)  to the extent provided under Section 303(b) of the Consumer Credit Protection Act (15 U.S.C. § 1673(b)); or

(B)  if the court finds the weekly expenses reasonably incurred by the debtor for his or her maintenance and that of dependents exceed the amounts exempted by subdivision (1)(A) of this subsection, such greater amount of earnings as the court shall order.

(2)  The court shall transmit all wage withholding orders issued under this section to the restitution unit, which shall forward the orders to the defendant’s employers.  Upon receipt of a wage withholding order from the restitution unit, an employer shall:

(A)  withhold from the wages paid to the defendant the amount specified in the order for each wage period;

(B)  forward the withheld wages to the restitution unit within seven working days after wages are withheld, specifying the date the wages were withheld;

(C)  retain a record of all withheld wages;

(D)  cease withholding wages upon notice from the restitution unit; and

(E)  notify the restitution unit within 10 days of the date the defendant’s employment is terminated.

(3)  In addition to the amounts withheld pursuant to this section, the employer may retain not more than $5.00 per month from the defendant’s wages as compensation for administrative costs incurred.

(4)  Any employer who fails to withhold wages pursuant to a wage withholding order within 10 working days of receiving actual notice or upon the next payment of wages to the employee, whichever is later, shall be liable to the restitution unit in the amount of the wages required to be withheld.

(5)  An employer who makes an error in the amount of wages withheld shall not be held liable if the error was made in good faith.

(6)  For purposes of this subsection, “wages” means any compensation paid or payable for personal services, whether designated as wages, salary, commission, bonuses, or otherwise, and shall include periodic payments under pension or retirement programs and workers’ compensation or insurance policies of any type.

(o)  A restitution obligation shall be nondischargeable, to the maximum extent provided under 11 U.S.C. § 523, in the United States Bankruptcy Court.

(p)  A transfer of property made with the intent to avoid a restitution obligation shall be deemed a fraudulent conveyance for purposes of chapter 57 of Title 9.

Sec. 7.  13 V.S.A. § 7282 is amended to read:

§ 7282.  ASSESSMENT

(a)  In addition to any penalty or fine imposed by the court or judicial bureau for a criminal offense or any civil penalty imposed for a traffic violation, including any violation of a fish and wildlife statute or regulation, violation of a motor vehicle statute, or violation of any local ordinance relating to the operation of a motor vehicle, except violations relating to seat belts and child restraints and ordinances relating to parking violations, the clerk of the court or judicial bureau shall levy an additional fee of:

(1)  $5.00 for any offense or violation committed prior to June 1, 1990.

(2)  $8.00 for any offense or violation committed after May 31, 1990, but before July 1, 1991, of which $3.00 shall be deposited into a special fund account to be known as the Victims’ Compensation Fund.

(3)  $10.00 for any offense or violation committed after June 30, 1991, but before July 1, 1993, of which $5.00 shall be deposited into a special fund account to be known as the Victims’ Compensation Fund.

(4)  $17.50 for any offense or violation committed after June 30, 1993, but before July 1, 2001, of which $12.50 shall be deposited into a special fund account to be known as the Victims’ Compensation Fund.

(5)  $20.50 for any offense or violation committed after June 30, 2001, but before July 1, 2003, of which $13.50 shall be deposited into a special fund account to be known as the victims’ compensation fund, and $2.00 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

(6)  For any offense committed after June 30, 2003:

(A)  $21.00, of which $13.75 shall be deposited into a special fund account to be known as the victims’ compensation fund, and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20; and

(B)  an amount equal to 15 percent of the fine imposed for the offense, rounded upward to the nearest whole dollar, which shall be deposited into the crime victims’ restitution special fund established by section 5363 of this title.

(b)  The fees imposed by this section shall be used for the purposes set out in section 7281 of this title and shall not be waived by the court.


Sec. 8.  28 V.S.A. § 253 is amended to read:

§ 253.  MODIFICATION OF CONDITIONS; REVOCATIONS

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(c)  When restitution or reparation to the victim has been ordered under section 252(b)(6) of this title, and the offender has failed to comply with the order, the state's attorney, after receiving an affidavit filed with the state's attorney by the victim or the probation officer, asserting noncompliance, may initiate a proceeding for revocation of probation.

Sec. 9.  28 V.S.A. § 255 is amended to read:

§ 255.  DISCHARGE

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(b)  When restitution or reparation to the victim has been ordered under subdivision 252(b)(6) of this title, the period of probation shall not terminate until the offender has complied with the order, absent a finding of good cause by the court.

Sec. 10.  28 V.S.A. § 301 is amended to read:

§ 301.  SUMMONS OR ARREST OF PROBATIONER

At any time before the discharge of the probationer or the termination of the period of probation:

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(2)  Arrest of person on probation.  Any correctional officer may arrest a probationer without a warrant if, in the judgment of the correctional officer, the probationer has violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution; or may deputize any other law enforcement officer to arrest a probationer without a warrant by giving him or her a written statement setting forth that the probationer has, in the judgment of the correctional officer, violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution.  The written statement delivered with the person by the arresting officer to the supervising officer of the correctional facility to which the person is brought for detention shall be sufficient warrant for detaining him or her.

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Sec. 11.  28 V.S.A. § 506 is amended to read:

§ 506.  TERMINATION AND DISCHARGE

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(c)  When restitution or reparation to the victim has been ordered under subdivision 252(b)(6) of this title, the board shall not discharge the parolee from supervision until the offender has complied with the order, unless the sentence has been served in full.

Sec. 12.  32 V.S.A. § 3102 is amended to read:

§ 3102.  CONFIDENTIALITY OF TAX RECORDS

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(e)  The commissioner may, in his or her discretion and subject to such conditions and requirements as he or she may provide, including any confidentiality requirements of the Internal Revenue Service, disclose a return or return information:

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(13)  to the commissioner of corrections or the center for crime victims services for the purpose of determining or verifying a defendant’s assets and income pursuant to section 7043 of Title 13.

Sec. 13.  32 V.S.A. § 5932 is amended to read:

§ 5932.  DEFINITIONS

As used in this chapter:

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(4)  “Debt” means any obligation to pay a sum of money to a claimant agency, the amount of which is fixed by agreement between the debtor and the claimant agency or by operation of law.  Such obligations do not include orders of restitution entered on behalf of a victim of a crime that may be collected by a claimant agency.

 

Sec. 13a.  13  V.S.A. § 5359 is added to read:

§ 5359.  VICTIMS’ COMPENSATION SPECIAL FUND

(a)  There is created a fund to be known as the victims’ compensation fund.  This fund shall be administered by the victims’ compensation board established by section 5352 of this title.  The purpose of this fund shall be to support the activities and the operating costs of the victims’ compensation board and the center for crime victims services.

(b)  The victims’ compensation fund shall consist of:

(1)  Fees imposed by the court clerk and designated for deposit into the fund pursuant to section 7282 of this title.

(2)  Restitution as ordered by the court pursuant to section 7043 of this title.

(3)  Funds received from inmate labor contribution from the prison industries enhancement program or from any other source.

(4)  Appropriations by the general assembly.

(c)  Balances in the fund at the end of the fiscal year shall be carried forward and remain in the fund.

Sec. 14.  REPORTS

(a)  The center for crime victims services and the department of corrections shall jointly develop a plan for transferring authority over restitution management and collection from the department to the center, including plans for the transition period, for existing restitution orders, and for restitution orders issued during the transition period.  The center and the department shall report the plan to the house and senate committees on judiciary on or before January 1, 2004.

(b)  On or before January 1, 2005, and annually thereafter, the restitution unit of the center for crime victims services shall report its activities during the preceding year to the house and senate committees on judiciary.  The report shall include the following information from the preceding year:

(1)  the total number of restitution orders issued;

(2)  the total amount of restitution ordered;

(3)  the total amount of restitution paid out of the crime victims’ restitution special fund;

(4)  the average amount and median amount of restitution ordered;

(5)  the number of restitution orders issued for each $1,000.00 increment less than $10,000.00; and

(6)  the rates of collection, including the total amount of restitution collected by the unit, the amount ordered but uncollected, and the amount ordered but determined by the unit to be unrecoverable.

Sec. 15.  EFFECTIVE DATE

This act shall take effect on July 1, 2004, except for Secs. 1, 3, 4, 7, 13a, and 14, which shall take effect on passage.

Sec. 16.  SUNSET

This act, except for Secs. 1 and 13a, shall expire on July 1, 2007.

Approved:  June 4, 2003