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H.B. 144
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5 AN ACT RELATING TO THE CRIMINAL CODE; AMENDING PROVISIONS REGARDING
6 SENTENCING ENHANCEMENTS TO REFLECT A RECENT UTAH SUPREME COURT
7 RULING; AND PROVIDING AN EFFECTIVE DATE.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 76-3-203, as last amended by Chapter 289, Laws of Utah 1997
11 76-3-203.1, as last amended by Chapter 11, Laws of Utah 1999
12 76-3-203.2, as last amended by Chapter 289, Laws of Utah 1997
13 76-3-203.5, as last amended by Chapter 97, Laws of Utah 1999
14 76-6-109, as enacted by Chapter 115, Laws of Utah 1998
15 76-10-508, as last amended by Chapter 295, Laws of Utah 1999
16 Be it enacted by the Legislature of the state of Utah:
17 Section 1. Section 76-3-203 is amended to read:
18 76-3-203. Felony conviction -- Indeterminate term of imprisonment -- Increase of
19 sentence if dangerous weapon used.
20 (1) As used in this section, "dangerous weapon" has the same definition as in Section
21 76-1-601 .
22 (2) A person who has been convicted of a felony may be sentenced to imprisonment for
23 an indeterminate term as follows:
24 [
25 unless otherwise specifically provided by law, and which may be for life, but if the trier of fact
26 finds beyond a reasonable doubt that a dangerous weapon[
27 used in the commission or furtherance of the felony, the court shall [
28 person convicted for a term of [
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31 [
32 year nor more than 15 years, but if the trier of fact finds beyond a reasonable doubt that a
33 dangerous weapon[
34 of the felony, the court shall [
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36 court may [
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38 than 20 years.
39 [
40 if the trier of fact finds beyond a reasonable doubt that a dangerous weapon[
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42 person convicted for a term of not less than one year nor more than five years; and the court may
43 [
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45 years.
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47 been sentenced to a term of imprisonment for a felony in which a dangerous weapon[
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49 furtherance of the felony and is subsequently convicted of another felony when a dangerous
50 weapon was used [
51 felony shall, in addition to any other sentence imposed, be sentenced for an indeterminate term to
52 be not less than five nor more than ten years to run consecutively and not concurrently.
53 Section 2. Section 76-3-203.1 is amended to read:
54 76-3-203.1. Offenses committed in concert with two or more persons -- Notice --
55 Enhanced penalties.
56 (1) (a) A person who commits any offense listed in Subsection (4) [
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58 Subsection (3) if the trier of fact finds beyond a reasonable doubt that the person acted in concert
59 with two or more persons.
60 (b) "In concert with two or more persons" as used in this section means the defendant [
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62 or encouraged by at least two other persons in committing the offense and was aware that he was
63 so aided or encouraged, and each of the other persons:
64 (i) was physically present; or
65 (ii) participated as a party to any offense listed in Subsection (4).
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69 (c) For purposes of Subsection (1)(b)(ii):
70 (i) other persons participating as parties need not have the intent to engage in the same
71 offense or degree of offense as the defendant; and
72 (ii) a minor is a party if the minor's actions would cause him to be a party if he were an
73 adult.
74 (2) [
75 to be subscribed upon the [
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77 section. [
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84 (3) The enhanced [
85 (a) [
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87 misdemeanor;
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90 (c) [
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92 (d) [
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95 an enhanced minimum term of nine years in prison[
96 (f) [
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98 (4) Offenses referred to in Subsection (1) are:
99 (a) any criminal violation of Title 58, Chapter 37, 37a, 37b, or 37c, regarding drug-related
100 offenses;
101 (b) assault and related offenses under Title 76, Chapter 5, Part 1;
102 (c) any criminal homicide offense under Title 76, Chapter 5, Part 2;
103 (d) kidnapping and related offenses under Title 76, Chapter 5, Part 3;
104 (e) any felony sexual offense under Title 76, Chapter 5, Part 4;
105 (f) sexual exploitation of a minor as defined in Section 76-5a-3 ;
106 (g) any property destruction offense under Title 76, Chapter 6, Part 1;
107 (h) burglary, criminal trespass, and related offenses under Title 76, Chapter 6, Part 2;
108 (i) robbery and aggravated robbery under Title 76, Chapter 6, Part 3;
109 (j) theft and related offenses under Title 76, Chapter 6, Part 4;
110 (k) any fraud offense under Title 76, Chapter 6, Part 5, except Sections 76-6-503 ,
111 76-6-504 , 76-6-505 , 76-6-507 , 76-6-508 , 76-6-509 , 76-6-510 , 76-6-511 , 76-6-512 , 76-6-513 ,
112 76-6-514 , 76-6-516 , 76-6-517 , 76-6-518 , and 76-6-520 ;
113 (l) any offense of obstructing government operations under [
114 Part 3, except Sections 76-8-302 , 76-8-303 , 76-8-304 , 76-8-307 , 76-8-308 , and 76-8-312 ;
115 (m) tampering with a witness or other violation of Section 76-8-508 ;
116 (n) extortion or bribery to dismiss criminal proceeding as defined in Section 76-8-509 ;
117 (o) any explosives offense under Title 76, Chapter 10, Part 3;
118 (p) any weapons offense under Title 76, Chapter 10, Part 5;
119 (q) pornographic and harmful materials and performances offenses under Title 76, Chapter
120 10, Part 12;
121 (r) prostitution and related offenses under Title 76, Chapter 10, Part 13;
122 (s) any violation of Title 76, Chapter 10, Part 15, Bus Passenger Safety Act;
123 (t) any violation of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
124 (u) communications fraud as defined in Section 76-10-1801 ;
125 (v) any violation of Title 76, Chapter 10, Part 19, Money Laundering and Currency
126 Transaction Reporting Act; and
127 (w) burglary of a research facility as defined in Section 76-10-2002 .
128 [
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131 persons with whom the actor is alleged to have acted in concert are not identified, apprehended,
132 charged, or convicted, or that any of those persons are charged with or convicted of a different or
133 lesser offense.
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145 Section 3. Section 76-3-203.2 is amended to read:
146 76-3-203.2. Definitions -- Use of dangerous weapon in offenses committed on or
147 about school premises -- Enhanced penalties.
148 (1) (a) [
149 premises" [
150 (i) in a public or private elementary, secondary, or on the grounds of any of those schools;
151 (ii) in a public or private vocational school or postsecondary institution or on the grounds
152 of any of those schools or institutions;
153 (iii) in those portions of any building, park, stadium, or other structure or grounds which
154 are, at the time of the act, being used for an activity sponsored by or through a school or institution
155 under Subsections (1)(a)(i) and (ii);
156 (iv) in or on the grounds of a preschool or child-care facility; and
157 (v) within 1,000 feet of any structure, facility, or grounds included in Subsections (1)(a)(i),
158 (ii), (iii), and (iv).
159 (b) As used in this section:
160 (i) "Dangerous weapon" has the same definition as in Section 76-1-601 .
161 [
162 is required to hold a certificate issued by the State Board of Education in order to perform duties
163 of employment.
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165 or engaging in conduct required by the educator's employer to perform the duties of employment.
166 (2) Any person who, on or about school premises, commits any offense and uses or
167 threatens to use a dangerous weapon, as defined in Section 76-1-601 , in the commission of the
168 offense is subject to an enhanced degree of offense as provided in Subsection (4).
169 (3) (a) Any person who commits an offense against an educator when the educator is
170 acting within the course of employment is subject to an enhanced degree of offense as provided
171 in Subsection (4).
172 (b) As used in Subsection (3)(a), "offense" means:
173 (i) an offense under Title 76, Chapter 5, Offenses Against The Person; and
174 [
175 (4) [
176 or about school premises, commits any offense and in the commission of the offense uses or
177 threatens to use a dangerous weapon, or that the defendant committed an offense against an
178 educator when the educator was acting within the course of his employment, the enhanced [
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180 (a) [
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182 (c) [
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184 (5) The enhanced penalty for a first degree felony offense of a convicted person:
185 (a) [
186 life, and imposition or execution of the sentence may not be suspended unless the court finds that
187 the interests of justice would be best served and states the specific circumstances justifying the
188 disposition on the record; and
189 (b) [
190 76-3-203 except for an offense committed under Subsection (3) that does not involve a firearm.
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192 notice upon the information or indictment that the defendant is subject to the enhanced degree of
193 offense or penalty under Subsection (4) or (5). [
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200 (7) In cases where an offense is enhanced pursuant to Subsection (4)(a), (b), (c), or (d), or
201 under Subsection (5)(a) for an offense committed under Subsection (2) that does not involve a
202 firearm, the convicted person [
203 Section 76-3-203 .
204 Section 4. Section 76-3-203.5 is amended to read:
205 76-3-203.5. Habitual violent offender -- Definition -- Procedure -- Penalty.
206 (1) As used in this section:
207 (a) "Felony" means any offense against a criminal statute of the state, any other state, the
208 United States, or any district, possession, or territory of the United States for which the maximum
209 punishment the offender may be subjected to exceeds one year in prison.
210 (b) "Habitual violent offender" means a person convicted within the state of any violent
211 felony and who, on at least two previous occasions [
212 convicted of a violent felony and committed to either prison in Utah or an equivalent correctional
213 institution of another state or of the United States either at initial sentencing or after revocation of
214 probation.
215 (c) (i) "Violent felony" means any of the following offenses, or any attempt, solicitation,
216 or conspiracy to commit any of these offenses punishable as a felony:
217 (A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief under
218 Title 76, Chapter 6, Part 1, Property Destruction;
219 (B) aggravated assault under Title 76, Chapter 5, Part 1, Assault and Related Offenses;
220 (C) criminal homicide offenses under Title 76, Chapter 5, Part 2, Criminal Homicide;
221 (D) aggravated kidnapping and kidnapping under Title 76, Chapter 5, Part 3, Kidnaping;
222 (E) rape, Section 76-5-402 ;
223 (F) rape of a child, Section 76-5-402.1 ;
224 (G) object rape, Section 76-5-402.2 ;
225 (H) object rape of a child, Section 76-5-402.3 ;
226 (I) forcible sodomy, Section 76-5-403 ;
227 (J) sodomy on a child, Section 76-5-403.1 ;
228 (K) forcible sexual abuse, Section 76-5-404 ;
229 (L) aggravated sexual abuse of a child and sexual abuse of a child, Section 76-5-404.1 ;
230 (M) aggravated sexual assault, Section 76-5-405 ;
231 (N) sexual exploitation of a minor, Section 76-5a-3 ;
232 (O) aggravated burglary and burglary of a dwelling under Title 76, Chapter 6, Part 2,
233 Burglary and Criminal Trespass;
234 (P) aggravated robbery and robbery under Title 76, Chapter 6, Part 3, Robbery;
235 (Q) theft by extortion under Subsection 76-6-406 (2)(a) or (b);
236 (R) tampering with a witness under Subsection 76-8-508 (2)(c);
237 (S) tampering with a juror under Subsection 76-8-508.5 (2)(c);
238 (T) extortion to dismiss a criminal proceeding under Section 76-8-509 if by any threat or
239 by use of force theft by extortion has been committed pursuant to Subsections 76-6-406 (2)(a), (b),
240 and (i);
241 (U) damage or destruction of school or institution of higher education property by
242 explosives or flammable materials under Section 76-8-715 ;
243 (V) possession, use, or removal of explosive, chemical, or incendiary devices under
244 Subsections 76-10-306 (3) through (6);
245 (W) unlawful delivery of explosive, chemical, or incendiary devices under Section
246 76-10-307 ;
247 (X) purchase or possession of a dangerous weapon or handgun by a restricted person under
248 Section 76-10-503 ;
249 (Y) unlawful discharge of a firearm under Section 76-10-508 ;
250 (Z) aggravated exploitation of prostitution under Subsection 76-10-1306 (1)(a);
251 (AA) bus hijacking under Section 76-10-1504 ; and
252 (BB) discharging firearms and hurling missiles under Section 76-10-1505 ; or
253 (ii) any felony offense against a criminal statute of any other state, the United States, or
254 any district, possession, or territory of the United States which would constitute a violent felony
255 as defined in this Subsection (1) if committed in this state.
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265 the [
266 habitual violent offender under this section, the penalty for a:
267 (a) third degree felony [
268 (b) second degree felony [
269 or
270 (c) first degree felony [
271 (i) the convicted person is not eligible for probation; and
272 (ii) the Board of Pardons and Parole shall consider that the convicted person is a habitual
273 violent offender as an aggravating factor to determine the length of incarceration.
274 [
275 habitual violent offender under this section shall be provided in writing and shall be served upon
276 the defendant or his attorney not later than ten days prior to trial. Notice shall include the case
277 number, court, and date of conviction or commitment of any case relied upon by the prosecution.
278 (b) (i) The defendant shall serve notice in writing upon the prosecutor if the defendant
279 intends to deny that:
280 (A) the defendant is the person who was convicted or committed;
281 (B) the defendant was represented by counsel or had waived counsel; or
282 (C) the defendant's plea was understandingly or voluntarily entered.
283 (ii) The notice of denial shall be served not later than five days prior to trial and shall state
284 in detail the defendant's contention regarding the previous conviction and commitment.
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286 (4) (a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to
287 a jury, the jury may not be told until after it returns its verdict on the underlying felony charge, of
288 the:
289 (i) defendant's previous convictions for violent felonies, except as otherwise provided in
290 the Utah Rules of Evidence; or
291 (ii) allegation against the defendant of being a habitual violent offender.
292 (b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of
293 being an habitual violent offender by the same jury, if practicable, unless the defendant waives the
294 jury, in which case the allegation shall be tried immediately to the court.
295 (c) (i) Prior to or at the time of sentencing the trier of fact shall determine if this section
296 applies.
297 (ii) The [
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299 additional evidence.
300 (iii) Prior to sentencing under this section, the [
301 this section is applicable [
302 (d) If any previous conviction and commitment is based upon a plea of guilty or no contest,
303 there is a rebuttable presumption that the conviction and commitment were regular and lawful in
304 all respects if the conviction and commitment occurred after January 1, 1970. If the conviction and
305 commitment occurred prior to January 1, 1970, the burden is on the prosecution to establish by a
306 preponderance of the evidence that the defendant was then represented by counsel or had lawfully
307 waived his right to have counsel present, and that his plea was understandingly and voluntarily
308 entered.
309 (e) If the [
310 specific finding on the record and shall indicate in the order of judgment and commitment that the
311 defendant has been found by the [
312 sentenced under this section.
313 (5) The habitual violent offender provisions of this section are [
314 offense, and proof of a defendant's conduct as a habitual violent offender is [
315 preliminary hearing or at trial.
316 (6) (a) The sentencing enhancement provisions of Sections 76-3-407 and 76-3-408 [
317 apply to a felony conviction defined in Title 76, Chapter 5, Part 4, Sexual Offenses, and [
318 supersede the provisions of this section.
319 (b) Notwithstanding Subsection (6)(a):
320 (i) the convictions under Sections 76-5-404 and 76-5a-3 [
321 enhancement provisions of this section; and
322 (ii) the "violent felony" offense defined in Subsection (1)(c) shall include any felony sexual
323 offense violation of Title 76, Chapter 5, Part 4, Sexual Offenses, to determine if the convicted
324 person is a habitual violent offender.
325 Section 5. Section 76-6-109 is amended to read:
326 76-6-109. Offenses committed against timber, mining, or agricultural industries --
327 Enhanced penalties.
328 (1) A person who commits any criminal offense with the intent to halt, impede, obstruct,
329 or interfere with the lawful management, cultivation, or harvesting of trees or timber, or the
330 management or operations of agricultural or mining industries is subject to an enhanced penalty
331 for the offense as provided below. However, this section does not apply to action protected by the
332 National Labor Relations Act, 29 U.S.C. Section 151 et seq., or the Federal Railway Labor Act,
333 45 U.S.C. Section 151 et seq.
334 (2) [
335 to be subscribed upon the complaint in misdemeanor cases or the information or indictment in
336 felony cases notice that the defendant is subject to the enhanced penalties provided under this
337 section. [
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344 (3) [
345 any criminal offense with the intent to halt, impede, obstruct, or interfere with the lawful
346 management, cultivation, or harvesting of trees or timber, or the management or operations of
347 agricultural or mining industries, the penalties are enhanced as provided in this Subsection (3):
348 (a) a class C misdemeanor is a class B misdemeanor, with a mandatory fine of not less than
349 $1,000, which is in addition to any term of imprisonment the court may impose;
350 (b) a class B misdemeanor is a Class A misdemeanor, with a fine of not less than $2,500,
351 which is in addition to any term of imprisonment the court may impose;
352 (c) a class A misdemeanor is a third degree felony, with a fine of not less than $5,000,
353 which is in addition to any term of imprisonment the court may impose;
354 (d) a third degree felony is a second degree felony, with a fine of not less than $7,500,
355 which is in addition to any term of imprisonment the court may impose; and
356 (e) a second degree felony is subject to a fine of not less than $10,000, which is in addition
357 to any term of imprisonment the court may impose.
358 [
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360 Section 6. Section 76-10-508 is amended to read:
361 76-10-508. Discharge of firearm from a vehicle, near a highway, or in direction of
362 any person, building, or vehicle -- Penalties.
363 (1) (a) A person may not discharge any kind of dangerous weapon or firearm:
364 (i) from an automobile or other vehicle;
365 (ii) from, upon, or across any highway;
366 (iii) at any road signs placed upon any highways of the state;
367 (iv) at any communications equipment or property of public utilities including facilities,
368 lines, poles, or devices of transmission or distribution;
369 (v) at railroad equipment or facilities including any sign or signal;
370 (vi) within Utah State Park buildings, designated camp or picnic sites, overlooks, golf
371 courses, boat ramps, and developed beaches; or
372 (vii) without written permission to discharge the dangerous weapon from the owner or
373 person in charge of the property within 600 feet of:
374 (A) a house, dwelling, or any other building; or
375 (B) any structure in which a domestic animal is kept or fed, including a barn, poultry yard,
376 corral, feeding pen, or stockyard.
377 (b) It shall be a defense to any charge for violating this section that the person being
378 accused had actual permission of the owner or person in charge of the property at the time in
379 question.
380 (2) A violation of any provision of this section is a class B misdemeanor unless the actor
381 discharges a firearm under any of the following circumstances not amounting to criminal homicide
382 or attempted criminal homicide, in which case it is a third degree felony and the convicted person
383 shall be sentenced to an enhanced minimum term of three years in prison:
384 (a) the actor discharges a firearm in the direction of any person or persons, knowing or
385 having reason to believe that any person may be endangered;
386 (b) the actor, with intent to intimidate or harass another or with intent to damage a
387 habitable structure as defined in Subsection 76-6-101 (2), discharges a firearm in the direction of
388 any building; or
389 (c) the actor, with intent to intimidate or harass another, discharges a firearm in the
390 direction of any vehicle.
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411 (a) who discharges any kind of firearm when that person is in lawful defense of self or
412 others; or
413 (b) who is performing official duties as provided in Sections 23-20-1.5 and 76-10-523 and
414 as otherwise provided by law.
415 Section 7. Effective date.
416 If approved by two-thirds of all the members elected to each house, this act takes effect
417 upon approval by the governor, or the day following the constitutional time limit of Utah
418 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
419 date of veto override.
Legislative Review Note
as of 1-25-00 4:29 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.