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S.B. 179

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OFFENDERS - INCOME WITHHOLDING

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1997 GENERAL SESSION

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STATE OF UTAH

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Sponsor: Pete Suazo

5    AN ACT RELATING TO THE CRIMINAL CODE, PUNISHMENTS; AMENDING
6    RESTITUTION PROVISIONS TO PERMIT INCOME WITHHOLDING BY THE
7    DEPARTMENT OF CORRECTIONS; PERMITTING THE COURT TO ORDER INCOME
8    WITHHOLDING BY EMPLOYERS; REQUIRING ADULT PROBATION AND PAROLE
9    TO PROVIDE NOTICE TO THE EMPLOYER; AND REQUIRING COMPLIANCE WITH
10    ADMINISTRATIVE PROCEDURES ACT.
11    This act affects sections of Utah Code Annotated 1953 as follows:
12    AMENDS:
13         76-3-201, as last amended by Chapters 40, 79, and 241, Laws of Utah 1996
14    ENACTS:
15         76-3-201.4, Utah Code Annotated 1953
16    Be it enacted by the Legislature of the state of Utah:
17        Section 1. Section 76-3-201 is amended to read:
18         76-3-201. Sentences or combination of sentences allowed -- Civil penalties --
19     Restitution -- Hearing -- Definitions.
20        (1) As used in this section:
21        (a) "Conviction" includes a:
22        (i) judgment of guilt; and
23        (ii) plea of guilty.
24        (b) "Criminal activities" means any offense of which the defendant is convicted or any
25    other criminal conduct for which the defendant admits responsibility to the sentencing court with
26    or without an admission of committing the criminal conduct.
27        (c) "Pecuniary damages" means all special damages, but not general damages, which a


1    person could recover against the defendant in a civil action arising out of the facts or events
2    constituting the defendant's criminal activities and includes the money equivalent of property
3    taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical
4    expenses.
5        (d) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
6    victim, including the accrual of interest from the time of sentencing, insured damages, and
7    payment for expenses to a governmental entity for extradition or transportation and as further
8    defined in Subsection (4)(c).
9        (e) (i) "Victim" means any person whom the court determines has suffered pecuniary
10    damages as a result of the defendant's criminal activities.
11        (ii) "Victim" does not include any coparticipant in the defendant's criminal activities.
12        (2) Within the limits prescribed by this chapter, a court may sentence a person convicted
13    of an offense to any one of the following sentences or combination of them:
14        (a) to pay a fine;
15        (b) to removal or disqualification from public or private office;
16        (c) to probation unless otherwise specifically provided by law;
17        (d) to imprisonment;
18        (e) to life imprisonment;
19        (f) on or after April 27, 1992, to life in prison without parole; or
20        (g) to death.
21        (3) (a) This chapter does not deprive a court of authority conferred by law to:
22        (i) forfeit property;
23        (ii) dissolve a corporation;
24        (iii) suspend or cancel a license;
25        (iv) permit removal of a person from office;
26        (v) cite for contempt; or
27        (vi) impose any other civil penalty.
28        (b) A civil penalty may be included in a sentence.
29        (4) (a) (i) When a person is convicted of criminal activity that has resulted in pecuniary
30    damages, in addition to any other sentence it may impose, the court shall order that the defendant
31    make restitution to victims of crime as provided in this subsection, or for conduct for which the

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1    defendant has agreed to make restitution as part of a plea agreement. For purposes of restitution,
2    a victim has the meaning as defined in Section 77-38-2 and family member has the meaning as
3    defined in Section 77-37-2.
4        (ii) In determining whether restitution is appropriate, the court shall follow the criteria and
5    procedures as provided in Subsections (4)(c) and (4)(d).
6        (iii) If the court finds the defendant owes restitution, the clerk of the court shall enter an
7    order of complete restitution as defined in Subsection (8)(b) on the civil judgment docket and
8    provide notice of the order to the parties.
9        (iv) The order is considered a legal judgment enforceable under the Utah Rules of Civil
10    Procedure, and the person in whose favor the restitution order is entered may seek enforcement
11    of the restitution order in accordance with the Utah Rules of Civil Procedure. In addition, the
12    Department of Corrections may, on behalf of the person in whose favor the restitution order is
13    entered, enforce the restitution order as judgment creditor under the Utah Rules of Civil Procedure.
14        (v) If the defendant fails to obey a court order for payment of restitution and the victim or
15    department elects to pursue collection of the order by civil process, the victim shall be entitled to
16    recover reasonable attorney's fees.
17        (vi) A judgment ordering restitution constitutes a lien when recorded in a judgment docket
18    and shall have the same effect and is subject to the same rules as a judgment for money in a civil
19    action. Interest shall accrue on the amount ordered from the time of sentencing.
20        (vii) The Department of Corrections shall make rules permitting the restitution payments
21    to be credited to principal first and the remainder of payments credited to interest in accordance
22    with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
23        (b) (i) If a defendant has been extradited to this state under Title 77, Chapter 30,
24    Extradition, to resolve pending criminal charges and is convicted of criminal activity in the county
25    to which he has been returned, the court may, in addition to any other sentence it may impose,
26    order that the defendant make restitution for costs expended by any governmental entity for the
27    extradition.
28        (ii) In determining whether restitution is appropriate, the court shall consider the criteria
29    in Subsection (4)(c).
30        (c) In determining restitution, the court shall determine complete restitution and
31    court-ordered restitution.

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1        (i) Complete restitution means the restitution necessary to compensate a victim for all
2    losses caused by the defendant.
3        (ii) Court-ordered restitution means the restitution the court having criminal jurisdiction
4    orders the defendant to pay as a part of the criminal sentence at the time of sentencing.
5        (iii) Complete restitution and court-ordered restitution shall be determined as provided in
6    Subsection (8).
7        (d) (i) If the court determines that restitution is appropriate or inappropriate under this
8    subsection, the court shall make the reasons for the decision a part of the court record.
9        (ii) In any civil action brought by a victim to enforce the judgment, the defendant shall be
10    entitled to offset any amounts that have been paid as part of court-ordered restitution to the victim.
11        (iii) A judgment ordering restitution constitutes a lien when recorded in a judgment docket
12    and shall have the same effect and is subject to the same rules as a judgment for money in a civil
13    action. Interest shall accrue on the amount ordered from the time of sentencing.
14        (iv) The Department of Corrections shall make rules permitting the restitution payments
15    to be credited to principal first and the remainder of payments credited to interest in accordance
16    with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
17        (e) If the defendant objects to the imposition, amount, or distribution of the restitution, the
18    court shall at the time of sentencing allow the defendant a full hearing on the issue.
19        (f) (i) If the court imposes a sentence of imprisonment, the court may also include within
20    the sentence an authorization for the Department of Corrections to deduct and withhold a portion
21    of the defendant's income received while in prison for payment of the court-ordered restitution.
22        (ii) The amount of income to be withheld by the department shall be determined pursuant
23    to rule in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, after taking
24    into consideration the needs and obligations of the defendant. The amount withheld shall not be
25    subject to the limitations of Section 303(b) of the Consumer Credit Protection Act, 15 U.S.C.
26    1763(b).
27        (iii) If an offender objects to the amount of withholding determined by the department, the
28    offender may challenge the amount at a department hearing in accordance with Title 63, Chapter
29    46b, Administrative Procedures Act.
30        (5) (a) In addition to any other sentence the court may impose, the court shall order the
31    defendant to pay restitution of governmental transportation expenses if the defendant was:

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1        (i) transported pursuant to court order from one county to another within the state at
2    governmental expense to resolve pending criminal charges;
3        (ii) charged with a felony or a class A, B, or C misdemeanor; and
4        (iii) convicted of a crime.
5        (b) The court may not order the defendant to pay restitution of governmental transportation
6    expenses if any of the following apply:
7        (i) the defendant is charged with an infraction or on a subsequent failure to appear a
8    warrant is issued for an infraction; or
9        (ii) the defendant was not transported pursuant to a court order.
10        (c) (i) Restitution of governmental transportation expenses under Subsection (a)(i) shall
11    be calculated according to the following schedule:
12        (A) $75 for up to 100 miles a defendant is transported;
13        (B) $125 for 100 up to 200 miles a defendant is transported; and
14        (C) $250 for 200 miles or more a defendant is transported.
15        (ii) The schedule of restitution under Subsection (c)(i) applies to each defendant
16    transported regardless of the number of defendants actually transported in a single trip.
17        (6) (a) If a statute under which the defendant was convicted mandates that one of three
18    stated minimum terms shall be imposed, the court shall order imposition of the term of middle
19    severity unless there are circumstances in aggravation or mitigation of the crime.
20        (b) Prior to or at the time of sentencing, either party may submit a statement identifying
21    circumstances in aggravation or mitigation or presenting additional facts. If the statement is in
22    writing, it shall be filed with the court and served on the opposing party at least four days prior to
23    the time set for sentencing.
24        (c) In determining whether there are circumstances that justify imposition of the highest
25    or lowest term, the court may consider the record in the case, the probation officer's report, other
26    reports, including reports received under Section 76-3-404, statements in aggravation or mitigation
27    submitted by the prosecution or the defendant, and any further evidence introduced at the
28    sentencing hearing.
29        (d) The court shall set forth on the record the facts supporting and reasons for imposing
30    the upper or lower term.
31        (e) The court in determining a just sentence shall consider sentencing guidelines regarding

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1    aggravation and mitigation promulgated by the Commission on Criminal and Juvenile Justice.
2        (7) If during the commission of a crime described as child kidnaping, rape of a child,
3    object rape of a child, sodomy upon a child, or sexual abuse of a child, the defendant causes
4    substantial bodily injury to the child, and if the charge is set forth in the information or indictment
5    and admitted by the defendant, or found true by a judge or jury at trial, the defendant shall be
6    sentenced to the highest minimum term in state prison. This subsection takes precedence over any
7    conflicting provision of law.
8        (8) (a) For the purpose of determining restitution for an offense, the offense shall include
9    any criminal conduct admitted by the defendant to the sentencing court or to which the defendant
10    agrees to pay restitution. A victim of an offense, that involves as an element a scheme, a
11    conspiracy, or a pattern of criminal activity, includes any person directly harmed by the defendant's
12    criminal conduct in the course of the scheme, conspiracy, or pattern.
13        (b) In determining the monetary sum and other conditions for complete restitution, the
14    court shall consider all relevant facts, including:
15        (i) the cost of the damage or loss if the offense resulted in damage to or loss or destruction
16    of property of a victim of the offense;
17        (ii) the cost of necessary medical and related professional services and devices relating to
18    physical, psychiatric, and psychological care, including nonmedical care and treatment rendered
19    in accordance with a method of healing recognized by the law of the place of treatment; the cost
20    of necessary physical and occupational therapy and rehabilitation; and the income lost by the
21    victim as a result of the offense if the offense resulted in bodily injury to a victim; and
22        (iii) the cost of necessary funeral and related services if the offense resulted in the death
23    of a victim.
24        (c) In determining the monetary sum and other conditions for court-ordered restitution, the
25    court shall consider the factors listed in Subsection (8)(b) and:
26        (i) the financial resources of the defendant and the burden that payment of restitution will
27    impose, with regard to the other obligations of the defendant;
28        (ii) the ability of the defendant to pay restitution on an installment basis or on other
29    conditions to be fixed by the court;
30        (iii) the rehabilitative effect on the defendant of the payment of restitution and the method
31    of payment; and

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1        (iv) other circumstances which the court determines make restitution inappropriate.
2        (d) The court may decline to make an order or may defer entering an order of restitution
3    if the court determines that the complication and prolongation of the sentencing process, as a result
4    of considering an order of restitution under this subsection, substantially outweighs the need to
5    provide restitution to the victim.
6        Section 2. Section 76-3-201.4 is enacted to read:
7         76-3-201.4. Court order -- Notice -- Employer's duties -- Employer's liability.
8        (1) If a restitution order is issued pursuant to this section, the court may include a
9    provision that the offender's income is subject to income withholding. The court shall specify the
10    amount of income to be withheld by the offender's employer.
11        (2) When the order is issued, the Department of Adult Probation and Parole shall mail or
12    deliver to each employer at the employer's last-known address written notice stating:
13        (a) the amount of restitution to be withheld from income;
14        (b) that the restitution shall be withheld from the offender's income each time the offender
15    is paid, but that the amount actually withheld may not exceed the maximum amount permitted
16    under Section 303(b) of the Consumer Credit Protection Act, 15 U.S.C. Sec. 1763(b);
17        (c) that the employer shall mail or deliver the withheld income to the Department of Adult
18    Probation and Parole within ten days of the date the employer pays the offender;
19        (d) (i) that the employer may deduct from the offender's income an additional amount once
20    per month which is equal to the amount payable to a garnishee under Rule 64(D) of the Utah Rules
21    of Civil Procedure, as the employer's fee for administrative costs; and
22        (ii) that the total amount withheld may not exceed the maximum amount permitted under
23    Section 303(b) of the Consumer Credit Protection Act, 15 U.S.C. Sec. 1673(b);
24        (e) that the notice to withhold is binding on the employer until further notice by the
25    Department of Adult Probation and Parole;
26        (f) that if the employer fails to mail or deliver withheld income to the Department of Adult
27    Probation and Parole within the time period as provided in Subsection (3), the employer is liable
28    to the department for a late fee of $50, or 10% of the income withheld, whichever is greater, for
29    each payment that is later, per obligor;
30        (g) that if the employer willfully fails to withhold income in accordance with the notice,
31    the employer is liable to the department for $1,000, or the accumulated amount which should have

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1    been withheld, whichever is greater, plus interest on that amount;
2        (h) (i) that the notice to withhold is prior to any other legal process under state law except
3    child support withholding pursuant to Title 62A, Chapter 11, Part 4 and Part 5; and
4        (ii) that the employer shall begin to withhold income no later than the first time the
5    offender's earnings are normally paid after five working days from the date the employer receives
6    the notice; and
7        (i) that the employer must notify the Department of Adult Probation and Parole within five
8    days after the offender terminates employment or the periodic income payment is terminated, and
9    provide the offender's last-known address and the name and address of any new employer if
10    known; and
11        (j) that if the employer discharges, refuses to employ, or takes disciplinary action against
12    an offender because of the notice to withhold, the employer is liable to the Department of Adult
13    Probation and Parole for the greater of $1,000 or the amount of restitution accumulated to the date
14    of discharge which should have been withheld, plus interest on that amount.
15        (3) The provisions of this section shall comply with Title 63, Chapter 46b, Administrative
16    Procedures Act.




Legislative Review Note
    as of 2-12-97 2:50 PM


A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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