H.B. 215 Enrolled

ENFORCEMENT OF COURT'S RESTITUTION ORDER
1998 GENERAL SESSION
STATE OF UTAH
Sponsor: John E. Swallow
AN ACT RELATING TO THE JUDICIAL CODE; AMENDING PROVISIONS ON
RESTITUTION ORDERS; REINSTATING THAT THE DEFENDANT SHALL BE
ADVISED OF THE RIGHT TO CONTEST THE MANNER OF ENFORCEMENT.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
78-36-10.5, as last amended by Chapters 203 and 352, Laws of Utah 1997
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 78-36-10.5 is amended to read:
78-36-10.5. Order of restitution -- Service -- Enforcement -- Disposition of personal
property -- Hearing.
(1) Each order of restitution shall:
(a) direct the defendant to vacate the premises, remove his personal property, and restore
possession of the premises to the plaintiff, or be forcibly removed by a sheriff or constable; [and]
(b) advise the defendant of the time limit set by the court for the defendant to vacate the
premises, which shall be three business days following service of the order, unless the court
determines that a longer or shorter period is appropriate under the circumstances[.]; and
(c) advise the defendant of the defendant's right to a hearing to contest the manner of its
enforcement.
(2) (a) A copy of the order of restitution and a form for the defendant to request a hearing
as listed on the form shall be served in accordance with Section 78-36-6 by a person authorized
to serve process pursuant to Section 78-27-58 . If personal service is impossible or impracticable,
service may be made by:
(i) mailing a copy of the order and the form to the defendant's last-known address and
posting a copy of the order and the form at a conspicuous place on the premises; or
(ii) mailing a copy of the order and the form to the commercial tenant defendant's

last-known place of business and posting a copy of the order and the form at a conspicuous place on
the business premises.
(b) A request for hearing by the defendant may not stay enforcement of the restitution order
unless:
(i) the defendant furnishes a corporate bond, cash bond, certified funds, or a property bond
to the clerk of the court in an amount approved by the court according to the formula set forth in
Subsection 78-36-8.5 (2)(b); and
(ii) the court orders that the restitution order be stayed.
(c) The date of service, the name, title, signature, and telephone number of the person
serving the order and the form shall be legibly endorsed on the copy of the order and the form served
on the defendant.
(d) Within ten days of service, the person serving the order and the form shall file proof of
service in accordance with Rule 4(h), Utah Rules of Civil Procedure.
(3) (a) If the defendant fails to comply with the order within the time prescribed by the court,
a sheriff or constable at the plaintiff's direction may enter the premises by force using the least
destructive means possible to remove the defendant.
(b) Any personal property of the defendant may be removed from the premises by the sheriff
or constable and transported to a suitable location for safe storage. The sheriff or constable may
delegate responsibility for storage to the plaintiff, who shall store the personal property in a suitable
place and in a reasonable manner.
(c) The personal property removed and stored shall be inventoried by the sheriff or constable
or the plaintiff who shall keep the original inventory and personally deliver or mail the defendant
a copy of the inventory immediately after the personal property is removed.
(4) (a) After demand made by the defendant within 30 days of removal of personal property
from the premises, the sheriff or constable or the plaintiff shall promptly return all of the defendant's
personal property upon payment of the reasonable costs incurred for its removal and storage.
(b) The person storing the personal property may sell the property remaining in storage at
a public sale if:

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(i) the defendant does not request a hearing or demand return of the personal property within
30 days of its removal from the premises; or
(ii) the defendant fails to pay the reasonable costs incurred for the removal and storage of
the personal property.
(c) In advance of the sale, the person storing the personal property shall mail to the
defendant's last-known address a written notice of the time and place of the sale.
(d) If the defendant is present at the sale, he may specify the order in which the personal
property shall be sold, and only so much personal property shall be sold as to satisfy the costs of
removal, storage, advertising, and conducting the sale. The remainder of the personal property, if
any, shall be released to the defendant. If the defendant is not present at the sale, the proceeds, after
deduction of the costs of removal, storage, advertising, and conducting the sale shall be paid to the
plaintiff up to the amount of any judgment the plaintiff obtained against the defendant. Any surplus
shall be paid to the defendant, if the defendant's whereabouts are known. If the defendant's
whereabouts are not known, any surplus shall be disposed of in accordance with Title 67, Chapter
4a, Unclaimed Property Act.
(e) The plaintiff may donate the property to charity if:
(i) the defendant does not request a hearing or demand return of the personal property within
30 days of its removal from the premises; or
(ii) the defendant fails to pay the reasonable costs incurred for the removal and storage of
the personal property; and
(iii) donation is a commercially reasonable alternative.
(f) If the property belonging to a person who is not a defendant is removed and stored in
accordance with this section, that person may claim the property by delivering a written demand for
its release to the sheriff or constable or the plaintiff. If the claimant provides proper identification
and evidence of ownership, the sheriff or constable or the plaintiff shall promptly release the
property at no cost to the claimant.
(5) In the event of a dispute concerning the manner of enforcement of the restitution order,
the defendant or any person claiming to own stored personal property may file a request for a

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hearing. The court shall set the matter for hearing within ten days from the filing of the request, or
as soon thereafter as practicable, and shall mail notice of the hearing to the parties.
(6) The Judicial Council shall draft the forms necessary to implement this section.

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