First Substitute S.B. 9

1

PAROLEES AND PROBATIONERS
2 EDUCATION REQUIREMENTS
3 1997 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: L. Steven Poulton
6 AN ACT RELATING TO CRIMINAL CODE AND UTAH CODE OF CRIMINAL
7 PROCEDURE; REQUIRING THAT CERTAIN PAROLEES AND PROBATIONERS
8 OBTAIN A HIGH SCHOOL GRADUATION DIPLOMA, GED CERTIFICATE, OR
9 VOCATIONAL CERTIFICATE PRIOR TO EARLY TERMINATION OF THEIR PAROLE
10 OR AS A CONDITION OF PROBATION; PROVIDING EXCEPTIONS; AND MAKING
11 TECHNICAL CORRECTIONS.
12 This act affects sections of Utah Code Annotated 1953 as follows:
13 AMENDS:
14 76-3-202, as last amended by Chapter 100, Laws of Utah 1996
15 77-18-1, as last amended by Chapter 79, Laws of Utah 1996
16 Be it enacted by the Legislature of the state of Utah:
17 Section 1. Section 76-3-202 is amended to read:
18 76-3-202. Paroled persons -- Termination or discharge from sentence -- Time served
19 on parole -- Discretion of Board of Pardons and Parole.
20 (1) Except as otherwise provided in this section, every person committed to the state prison
21 to serve an indeterminate term and later released on parole shall, upon completion of three years
22 on parole outside of confinement and without violation, be terminated from his sentence unless
23 the person is earlier terminated by the Board of Pardons and Parole. Any person who violates the
24 terms of his parole, while serving parole, shall at the discretion of the Board of Pardons and Parole
25 be recommitted to prison to serve the portion of the balance of his term as determined by the Board
26 of Pardons and Parole, but not to exceed the maximum term.
27 (2) Every person convicted of a second degree felony for violating Section 76-5-404 or

1 76-5-404.1, or attempting to violate any of those sections, upon completion of ten years parole
2 outside of confinement and without violation, shall be terminated from his sentence unless the
3 person is earlier terminated by the Board of Pardons and Parole. Any person who violates the
4 terms of his parole, while serving parole, shall at the discretion of the Board of Pardons and Parole
5 be recommitted to prison to serve the portion of the balance of his term as determined by the Board
6 of Pardons and Parole, but not to exceed the maximum term.
7 (3) Every person convicted of a first degree felony for violating Section 76-5-301.1,
8 Subsection 76-5-302(1)(e), Section 76-5-402, 76-5-402.1, 76-5-402.2, 76-5-402.3, 76-5-403,
9 76-5-403.1, 76-5-404.1, or 76-5-405, or attempting to violate any of those sections, shall complete
10 a term of lifetime parole outside of confinement and without violation unless the person is earlier
11 terminated by the Board of Pardons and Parole. Any person who violates the terms of his parole,
12 while serving parole, shall at the discretion of the Board of Pardons and Parole be recommitted to
13 prison to serve the portion of the balance of his term as determined by the Board of Pardons and
14 Parole, but not to exceed the maximum term.
15 (4) In order for a parolee convicted on or after May 5, 1997, to be eligible for early
16 termination from parole, the parolee must provide:
17 (a) evidence to the Board of Pardons and Parole that the parolee has completed high school
18 classwork and has obtained a high school graduation diploma, a GED certificate, or a vocational
19 certificate; or
20 (b) documentation of the inability to obtain one of the items listed in Subsection (a)
21 because of:
22 (i) a diagnosed learning disability; or
23 (ii) other justified cause.
24 [(4)] (5) Any person paroled following a former parole revocation may not be discharged
25 from his sentence until either:
26 (a) he has served three years or ten years as provided in Subsection (2) on parole outside
27 of confinement and without violation, or in the case of a person convicted of a first degree felony
28 violation of Section 76-5-301.1, Subsection 76-5-302(1)(e), Section 76-5-402, 76-5-402.1,
29 76-5-402.2, 76-5-402.3, 76-5-403, 76-5-403.1, 76-5-404.1, or 76-5-405, or attempting to violate
30 any of those sections, lifetime parole outside of confinement and without violation;
31 (b) his maximum sentence has expired; or

- 2 -

1 (c) the Board of Pardons and Parole so orders.
2 [(5)] (6) (a) All time served on parole, outside of confinement and without violation
3 constitutes service of the total sentence but does not preclude the requirement of serving a
4 three-year, ten-year, or lifetime parole term, as the case may be, outside of confinement and
5 without violation.
6 (b) Any time a person spends outside of confinement after commission of a parole
7 violation does not constitute service of the total sentence unless the person is exonerated at a
8 hearing to revoke the parole.
9 (c) Any time spent in confinement awaiting a hearing before the Board of Pardons and
10 Parole or a decision by the board concerning revocation of parole constitutes service of the
11 sentence. In the case of exoneration by the board, the time spent shall be included in computing
12 the total parole term.
13 [(6)] (7) When any parolee without authority from the Board of Pardons and Parole
14 absents himself from the state or avoids or evades parole supervision, the period of absence,
15 avoidance, or evasion tolls the parole period.
16 [(7)] (8) This section does not preclude the Board of Pardons and Parole from paroling or
17 discharging an inmate at any time within the discretion of the Board of Pardons and Parole unless
18 otherwise specifically provided by law.
19 [(8)] (9) The parolee may petition the Board of Pardons and Parole for termination of
20 lifetime parole as provided by Section 76-3-202 in the case of a person convicted of a first degree
21 felony violation Section 76-5-301.1, Subsection 76-5-302(1)(e), Section 76-5-402, 76-5-402.1,
22 76-5-402.2, 76-5-402.3, 76-5-403, 76-5-403.1, 76-5-404.1, or 76-5-405, or attempting to violate
23 any of those sections.
24 Section 2. Section 77-18-1 is amended to read:
25 77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation -- Supervision
26 -- Presentence investigation -- Standards -- Confidentiality -- Terms and conditions --
27 Restitution -- Termination, revocation, modification, or extension -- Hearings -- Electronic
28 monitoring.
29 (1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea in
30 abeyance agreement, the court may hold the plea in abeyance as provided in Title 77, Chapter 2a,
31 Pleas in Abeyance, and under the terms of the plea in abeyance agreement.

- 3 -

1 (2) (a) On a plea of guilty, guilty and mentally ill, no contest, or conviction of any crime
2 or offense, the court may suspend the imposition or execution of sentence and place the defendant
3 on probation. The court may place the defendant:
4 (i) on probation under the supervision of the Department of Corrections except in cases
5 of class C misdemeanors or infractions;
6 (ii) on probation with an agency of local government or with a private organization; or
7 (iii) on bench probation under the jurisdiction of the sentencing court.
8 (b) (i) The legal custody of all probationers under the supervision of the department is with
9 the department.
10 (ii) The legal custody of all probationers under the jurisdiction of the sentencing court is
11 vested as ordered by the court. The court has continuing jurisdiction over all probationers.
12 (3) (a) The department shall establish supervision and presentence investigation standards
13 for all individuals referred to the department. These standards shall be based on:
14 (i) the type of offense;
15 (ii) the demand for services;
16 (iii) the availability of agency resources;
17 (iv) the public safety; and
18 (v) other criteria established by the department to determine what level of services shall
19 be provided.
20 (b) Proposed supervision and investigation standards shall be submitted to the Judicial
21 Council and the Board of Pardons and Parole on an annual basis for review and comment prior to
22 adoption by the department.
23 (c) The Judicial Council and the department shall establish procedures to implement the
24 supervision and investigation standards.
25 (d) The Judicial Council and the department shall annually consider modifications to the
26 standards based upon criteria in Subsection (3)(a) and other criteria as they consider appropriate.
27 (e) The Judicial Council and the department shall annually prepare an impact report and
28 submit it to the appropriate legislative appropriations subcommittee.
29 (4) Notwithstanding other provisions of law, the department is not required to supervise
30 the probation of persons convicted of class B or C misdemeanors or infractions or to conduct
31 presentence investigation reports on class C misdemeanors or infractions. However, the

- 4 -

1 department may supervise the probation of class B misdemeanants in accordance with department
2 standards.
3 (5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of the
4 defendant, continue the date for the imposition of sentence for a reasonable period of time for the
5 purpose of obtaining a presentence investigation report from the department or information from
6 other sources about the defendant.
7 (b) The presentence investigation report shall include a victim impact statement describing
8 the effect of the crime on the victim and the victim's family. The victim impact statement shall:
9 (i) identify the victim of the offense;
10 (ii) include a specific statement of the recommended amount of complete restitution as
11 defined in Subsection 76-3-201(4), accompanied by a recommendation from the department
12 regarding the payment of court-ordered restitution as defined in Subsection 76-3-201(4) by the
13 defendant;
14 (iii) identify any physical injury suffered by the victim as a result of the offense along with
15 its seriousness and permanence;
16 (iv) describe any change in the victim's personal welfare or familial relationships as a
17 result of the offense;
18 (v) identify any request for psychological services initiated by the victim or the victim's
19 family as a result of the offense; and
20 (vi) contain any other information related to the impact of the offense upon the victim or
21 the victim's family that is relevant to the trial court's sentencing determination.
22 (c) The presentence investigation report shall include a specific statement of pecuniary
23 damages, accompanied by a recommendation from the department regarding the payment of
24 restitution with interest by the defendant in accordance with Subsection 76-3-201(4).
25 (d) The contents of the presentence investigation report, including any diagnostic
26 evaluation report ordered by the court under Section 76-3-404, are protected and are not available
27 except by court order for purposes of sentencing as provided by rule of the Judicial Council or for
28 use by the department.
29 (6) (a) The department shall provide the presentence investigation report to the defendant's
30 attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review,
31 three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation

- 5 -

1 report, which have not been resolved by the parties and the department prior to sentencing, shall
2 be brought to the attention of the sentencing judge, and the judge may grant an additional ten
3 working days to resolve the alleged inaccuracies of the report with the department. If after ten
4 working days the inaccuracies cannot be resolved, the court shall make a determination of
5 relevance and accuracy on the record.
6 (b) If a party fails to challenge the accuracy of the presentence investigation report at the
7 time of sentencing, that matter shall be considered to be waived.
8 (7) At the time of sentence, the court shall receive any testimony, evidence, or information
9 the defendant or the prosecuting attorney desires to present concerning the appropriate sentence.
10 This testimony, evidence, or information shall be presented in open court on record and in the
11 presence of the defendant.
12 (8) While on probation, and as a condition of probation, the defendant:
13 (a) may be required to perform any or all of the following:
14 [(a)] (i) pay, in one or several sums, any fine imposed at the time of being placed on
15 probation;
16 [(b)] (ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
17 [(c)] (iii) provide for the support of others for whose support he is legally liable;
18 [(d)] (iv) participate in available treatment programs;
19 [(e)] (v) serve a period of time in the county jail not to exceed one year;
20 [(f)] (vi) serve a term of home confinement, which may include the use of electronic
21 monitoring;
22 [(g)] (vii) participate in community service restitution programs, including the community
23 service program provided in Section 78-11-20.7;
24 [(h)] (viii) pay for the costs of investigation, probation, and treatment services;
25 [(i)] (ix) make restitution or reparation to the victim or victims with interest in accordance
26 with Subsection 76-3-201 (4); and
27 [(j)] (x) comply with other terms and conditions the court considers appropriate[.]; and
28 (b) if convicted on or after May 5, 1997, shall be required to:
29 (i) complete high school classwork and obtain a high school graduation diploma, a GED
30 certificate, or a vocational certificate at the defendant's own expense if the defendant has not
31 received the diploma, GED certificate, or vocational certificate prior to being placed on probation;

- 6 -

1 or
2 (ii) provide documentation of the inability to obtain one of the items listed in Subsection
3 (i) because of:
4 (A) a h [mental ] DIAGNOSED LEARNING h disability; or
5 (B) other justified cause.
6 (9) The department, upon order of the court, shall collect and disburse fines, restitution
7 with interest in accordance with Subsection 76-3-201(4), and any other costs assessed under
8 Section 64-13-21 during:
9 (a) the parole period and any extension of that period in accordance with Subsection
10 77-27-6(4); and
11 (b) the probation period in cases for which the court orders supervised probation and any
12 extension of that period by the department in accordance with Subsection 77-18-1(10).
13 (10) (a) (i) Probation may be terminated at any time at the discretion of the court or upon
14 completion without violation of 36 months probation in felony or class A misdemeanor cases, or
15 12 months in cases of class B or C misdemeanors or infractions.
16 (ii) If the defendant, upon expiration or termination of the probation period, owes
17 outstanding fines, restitution, or other assessed costs, the court may retain jurisdiction of the case
18 and continue the defendant on bench probation or place the defendant on bench probation for the
19 limited purpose of enforcing the payment of fines, restitution, including interest, if any, in
20 accordance with Subsection 76-3-201(4), and other amounts outstanding.
21 (iii) Upon motion of the prosecutor or victim, or upon its own motion, the court may
22 require the defendant to show cause why his failure to pay should not be treated as contempt of
23 court or why the suspended jail or prison term should not be imposed.
24 (b) The department shall notify the sentencing court and prosecuting attorney in writing
25 in advance in all cases when termination of supervised probation will occur by law. The
26 notification shall include a probation progress report and complete report of details on outstanding
27 fines, restitution, and other amounts outstanding.
28 (11) (a) (i) Any time served by a probationer outside of confinement after having been
29 charged with a probation violation and prior to a hearing to revoke probation does not constitute
30 service of time toward the total probation term unless the probationer is exonerated at a hearing
31 to revoke the probation.

lilac-February 19, 1997

- 7 -

1 (ii) Any time served in confinement awaiting a hearing or decision concerning revocation
2 of probation does not constitute service of time toward the total probation term unless the
3 probationer is exonerated at the hearing.
4 (b) The running of the probation period is tolled upon the filing of a violation report with
5 the court alleging a violation of the terms and conditions of probation or upon the issuance of an
6 order to show cause or warrant by the court.
7 (12) (a) (i) Probation may not be modified or extended except upon waiver of a hearing
8 by the probationer or upon a hearing and a finding in court that the probationer has violated the
9 conditions of probation.
10 (ii) Probation may not be revoked except upon a hearing in court and a finding that the
11 conditions of probation have been violated.
12 (b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to constitute
13 violation of the conditions of probation, the court that authorized probation shall determine if the
14 affidavit establishes probable cause to believe that revocation, modification, or extension of
15 probation is justified.
16 (ii) If the court determines there is probable cause, it shall cause to be served on the
17 defendant a warrant for his arrest or a copy of the affidavit and an order to show cause why his
18 probation should not be revoked, modified, or extended.
19 (c) (i) The order to show cause shall specify a time and place for the hearing and shall be
20 served upon the defendant at least five days prior to the hearing.
21 (ii) The defendant shall show good cause for a continuance.
22 (iii) The order to show cause shall inform the defendant of a right to be represented by
23 counsel at the hearing and to have counsel appointed for him if he is indigent.
24 (iv) The order shall also inform the defendant of a right to present evidence.
25 (d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
26 (ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney shall
27 present evidence on the allegations.
28 (iii) The persons who have given adverse information on which the allegations are based
29 shall be presented as witnesses subject to questioning by the defendant unless the court for good
30 cause otherwise orders.
31 (iv) The defendant may call witnesses, appear and speak in his own behalf, and present

- 8 -

1 evidence.
2 (e) (i) After the hearing the court shall make findings of fact.
3 (ii) Upon a finding that the defendant violated the conditions of probation, the court may
4 order the probation revoked, modified, continued, or that the entire probation term commence
5 anew.
6 (iii) If probation is revoked, the defendant shall be sentenced or the sentence previously
7 imposed shall be executed.
8 (13) Restitution imposed under this chapter and interest accruing in accordance with
9 Subsection 76-3-201(4) is considered a debt for willful and malicious injury for purposes of
10 exceptions listed to discharge in bankruptcy as provided in Title 11 U.S.C.A. Sec. 523, 1985.
11 (14) The court may order the defendant to commit himself to the custody of the Division
12 of Mental Health for treatment at the Utah State Hospital as a condition of probation or stay of
13 sentence, only after the superintendent of the Utah State Hospital or his designee has certified to
14 the court that:
15 (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
16 (b) treatment space at the hospital is available for the defendant; and
17 (c) persons described in Subsection 62A-12-209(2)(g) are receiving priority for treatment
18 over the defendants described in this subsection.
19 (15) Presentence investigation reports, including presentence diagnostic evaluations, are
20 classified protected in accordance with Title 63, Chapter 2, Government Records Access and
21 Management Act. Notwithstanding Sections 63-2-403 and 63-2-404, the State Records Committee
22 may not order the disclosure of a presentence investigation report. Except for disclosure at the
23 time of sentencing pursuant to this section, the department may disclose the presentence
24 investigation only when:
25 (a) ordered by the court pursuant to Subsection 63-2-202(7);
26 (b) requested by a law enforcement agency or other agency approved by the department
27 for purposes of supervision, confinement, and treatment of the offender;
28 (c) requested by the Board of Pardons and Parole;
29 (d) requested by the subject of the presentence investigation report or the subject's
30 authorized representative; or
31 (e) requested by the victim of the crime discussed in the presentence investigation report

- 9 -

1 or the victim's authorized representative, provided that the disclosure to the victim shall include
2 only information relating to statements or materials provided by the victim, to the circumstances
3 of the crime including statements by the defendant, or to the impact of the crime on the victim or
4 the victim's household.
5 (16) (a) The court shall consider home confinement as a condition of probation under the
6 supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5.
7 (b) The department shall establish procedures and standards for home confinement,
8 including electronic monitoring, for all individuals referred to the department in accordance with
9 Subsection (17).
10 (17) (a) If the court places the defendant on probation under this section, it may order the
11 defendant to participate in home confinement through the use of electronic monitoring as described
12 in this section until further order of the court.
13 (b) The electronic monitoring shall alert the department and the appropriate law
14 enforcement unit of the defendant's whereabouts.
15 (c) The electronic monitoring device shall be used under conditions which require:
16 (i) the defendant to wear an electronic monitoring device at all times; and
17 (ii) that a device be placed in the home of the defendant, so that the defendant's compliance
18 with the court's order may be monitored.
19 (d) If a court orders a defendant to participate in home confinement through electronic
20 monitoring as a condition of probation under this section, it shall:
21 (i) place the defendant on probation under the supervision of the Department of
22 Corrections;
23 (ii) order the department to place an electronic monitoring device on the defendant and
24 install electronic monitoring equipment in the residence of the defendant; and
25 (iii) order the defendant to pay the costs associated with home confinement to the
26 department or the program provider.
27 (e) The department shall pay the costs of home confinement through electronic monitoring
28 only for those persons who have been determined to be indigent by the court.
29 (f) The department may provide the electronic monitoring described in this section either
30 directly or by contract with a private provider.

- 10 -