S.B. 103

1

INDIGENT DEFENSE FUND AMENDMENTS
2 1998 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Leonard M. Blackham
5 AN ACT RELATING TO UTAH CODE OF CRIMINAL PROCEDURE; S CREATING AN INTERIM
5a BOARD TO MANAGE FUND MONIES UNTIL A PERMANENT BOARD CONSTITUTED; s AMENDING
5b DATES
6 FOR APPLICATIONS FOR INDIGENT FELONY AND CAPITAL FUND MONIES AND
7 EFFECTIVE DATES; AND MODIFYING PROVISIONS RELATED TO THE FUNDING OF
8 THE FUNDS.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 77-32-602, as enacted by Chapter 354, Laws of Utah 1997
12 77-32-603, as enacted by Chapter 354, Laws of Utah 1997
13 77-32-604, as enacted by Chapter 354, Laws of Utah 1997
14 77-32-702, as enacted by Chapter 354, Laws of Utah 1997
15 77-32-703, as enacted by Chapter 354, Laws of Utah 1997
16 77-32-704, as enacted by Chapter 354, Laws of Utah 1997
16a S ENACTS:
16b 77-32-401.5, UTAH CODE ANNOTATED 1953 s
17 Be it enacted by the Legislature of the state of Utah:
17a S SECTION 1. SECTION 77-32-401.5 IS ENACTED TO READ:
17b 77-32-401.5. INTERIM BOARD - MEMBERS - ADMINISTRATIVE SUPPORT - DUTIES.
17c (1) UNTIL THE INDIGENT DEFENSE FUNDS BOARD AUTHORIZED BY SECTION 77-32-401 IS
17d CONSTITUTED AFTER ACHIEVING THE NUMBER OF PARTICIPATING COUNTIES REQUIRED BY
Text Box

Amend on 2_goldenrod February 3, 1998 17e SECTIONS 77-32-604 AND 77-32-704, AN INTERIM BOARD MAY BE CREATED WITHIN THE DIVISION
17f OF FINANCE COMPOSED OF THE FOLLOWING THREE MEMBERS:


17g (A) A COUNTY COMMISSIONER FROM A COUNTY PARTICIPATING IN THE INDIGENT INMATE
17h TRUST FUND PURSUANT TO SECTION 77-32-502 APPOINTED BY THE UTAH ASSOCIATION OF
17i COUNTIES;
17j (B) A COUNTY ATTORNEY FROM A COUNTY PARTICIPATING IN THE INDIGENT INMATE
17k TRUST FUND PURSUANT TO SECTION 77-32-502 APPOINTED BY THE UTAH ASSOCIATION OF
17l COUNTIES; AND
17m (C) A REPRESENTATIVE APPOINTED BY THE ADMINISTRATIVE OFFICE OF THE COURTS.
17n (2) THE DIVISION OF FINANCE SHALL PROVIDE ADMINISTRATIVE SUPPORT TO THE INTERIM
17o BOARD.
17p (3)(A) MEMBERS SHALL SERVE UNTIL THE INDIGENT DEFENSE FUNDS BOARD IS
17q CONSTITUTED.
17r (B) WHEN A VACANCY OCCURS IN THE MEMBERSHIP FOR ANY REASON, A REPLACEMENT
17s SHALL BE APPOINTED FOR THE REMAINING UNEXPIRED TERM IN THE SAME MANNER AS THE
17t ORIGINAL APPOINTMENT.
17u (4)(A) COMPENSATION FOR MEMBERS SHALL BE THE SAME AS PROVIDED IN SUBSECTION
17v 77-32-401(6).
17w (B) PER DIEM AND EXPENSES FOR BOARD MEMBERS SHALL BE PAID FROM THE INDIGENT
17x INMATE TRUST FUND IN SECTION 77-32-502.
17y (5) UNTIL THE INDIGENT DEFENSE FUNDS BOARD IS CONSTITUTED, THE INTERIM BOARD
17z SHALL BE AUTHORIZED TO CARRY OUT ANY RESPONSIBILITY PROVIDED TO THE INDIGENT
17aa DEFENSE FUNDS BOARD IN STATUTE AS IT RELATES TO CHAPTER 77, PART 5, INDIGENT INMATES.
17ab (4) THE ACTION BY TWO MEMBERS PRESENT SHALL CONSTITUTE THE ACTION OF THE
17ac BOARD. s
18 Section S [ 1 ] 2 s . Section 77-32-602 is amended to read:
19 77-32-602. County participation.
20 (1) (a) Any county may participate in the fund subject to the provisions of this chapter.
21 Any county that chooses not to participate, or is not current in its contributions, is ineligible to
22 receive money from the fund.
23 (b) The board may revoke a county's participation in the fund if the county fails to pay its
24 assessments when due.
Text Box

Amend on 2_goldenrod February 3, 1998 25 (2) To participate in the fund, the legislative body of a county shall:

- 1a -
26 (a) adopt a resolution approving participation in the fund and committing that county to
Text Box

Amend on 2_goldenrod February 3, 1998 27 fulfill the assessment requirements as set forth in Subsection (3) and Section 77-32-603; and

- 1b -

1 (b) submit a certified copy of that resolution together with an application to the board.
2 (3) By January [1] 15 of each year, a participating county shall contribute to the fund an
3 amount computed in accordance with Section 77-32-603.
4 (4) Any participating county may withdraw from participation in the fund upon:
5 (a) adoption by its legislative body of a resolution to withdraw; and
6 (b) notice to the board by January 1 of the year prior to withdrawal.
7 (5) A county withdrawing from participation in the fund, or whose participation in the
8 fund has been revoked for failure to pay its assessments when due, shall forfeit the right to:
9 (a) any previously payed assessment;
10 (b) relief from its obligation to pay its assessment during the period of its participation in
11 the fund; and
12 (c) any benefit from the fund, including reimbursement of costs which accrued after the
13 last day of the period for which the county has paid its assessment.
14 Section S [ 2 ] 3 s . Section 77-32-603 is amended to read:
15 77-32-603. County and state obligations.
16 (1) (a) [Each] Expect as provided in Subsection (1)(b), each participating county shall pay
17 into the fund annually an amount [equal to .00005 per dollar of taxable value in its county until]
18 calculated by multiplying the average of the percent of its population to the total population of all
19 participating counties and of the percent its taxable value of the locally and centrally assessed
20 property located with that county to the total taxable value of the locally and centrally assessed
21 property to all participating counties by the total fund assessment for that year to be paid by all
22 participating counties as is determined by the board [determines the fund is] to be sufficient [and]
23 such that it is unlikely that a deficit will occur in the fund in any calendar year.
24 (b) The fund minimum shall be equal to or greater than 50 cents per person of all counties
25 participating.
26 [(b)] (c) The amount paid by the participating county pursuant to Subsection (1)[(a)] shall
27 be the total county obligation for payment of costs pursuant to Section 77-32-601.
28 (2) (a) After the first year of operation of the fund, any county that elects to initiate
29 participation in the fund, or reestablish participation in the fund after participation was terminated,
Text Box

Amend on 2_goldenrod February 3, 1998 30 shall be required to make an equity payment in addition to the assessment provided in Subsection
31 (1).

- 2 -

1 (b) The equity payment shall be determined by the board and represent what the county's
2 equity in the fund would be if the county had made assessments into the fund for each of the
3 previous two years.
4 (3) If the fund balance after contribution by the state and participating counties is
5 insufficient to replenish the fund annually to at least $250,000, the board by a majority vote may
6 terminate the fund.
7 (4) If the fund is terminated, all remaining funds shall continue to be administered and
8 disbursed in accordance with the provision of this chapter until exhausted, at which time the fund
9 shall cease to exist.
10 (5) (a) If the fund runs a deficit during any calendar year, the state is responsible for the
11 deficit.
12 (b) In the calendar year following a deficit year, the board shall increase the assessment
13 required by Subsection (1) by an amount at least equal to the deficit of the previous year, which
14 combined amount becomes the base assessment until another deficit year occurs.
15 (6) In any calendar year in which the fund runs a deficit, or is projected to run a deficit,
16 the board shall request a supplemental appropriation to pay for the deficit from the Legislature in
17 the following general session. The state shall pay any or all of the reasonable and necessary
18 monies for the deficit into the Indigent Capital Defense Trust Fund.
19 Section S [ 3 ] 4 s . Section 77-32-604 is amended to read:
20 77-32-604. Application and qualification for fund money.
21 (1) Any participating county may apply to the board for benefits from the fund if that
22 county has incurred, or reasonably anticipates incurring, expenses in the defense of an indigent for
23 capital offenses in violation of state law arising out of a single criminal episode.
24 (2) No application shall be made nor benefits provided from the fund for cases filed before
25 September 1, [1997] 1998.
26 (3) If the application of a participating county is approved by the board, the board shall
27 negotiate, enter into, and administer a contract with counsel for the indigent and costs incurred for
28 the defense of that indigent, including fees for counsel and reimbursement for defense costs
29 incurred by defense counsel.
30 (4) Nonparticipating counties are responsible for paying indigent costs in their county and
Text Box

Amend on 2_goldenrod February 3, 1998 31 shall not be eligible for any legislative relief. However, nonparticipating counties may provide for

- 3 -

1 payment of indigent costs through an increase in the county tax levy as provided in Section
2 77-32-307.
3 (5) This part may not become effective unless the board has received resolutions before
4 August 1,[1997] 1998, from at least 15 counties adopted as described in Subsection 77-32-602(2).
5 Section S [ 4 ] 5 s . Section 77-32-702 is amended to read:
6 77-32-702. County participation.
7 (1) (a) Any county may participate in the fund subject to the provisions of this chapter.
8 Any county that chooses not to participate, or is not current in its contributions, is ineligible to
9 receive money from the fund.
10 (b) The board may revoke a county's participation in the fund if the county fails to pay its
11 assessments when due.
12 (2) To participate in the fund, the legislative body of a county shall:
13 (a) adopt a resolution approving participation in the fund and committing that county to
14 fulfill the assessment requirements as set forth in Subsection (3) and Section 77-32-703; and
15 (b) submit a certified copy of that resolution together with an application to the board.
16 (3) By January [1] 15 of each year, a participating county shall contribute to the fund an
17 amount computed in accordance with Section 77-32-703.
18 (4) Any participating county may withdraw from participation in the fund upon:
19 (a) adoption by its legislative body of a resolution to withdraw; and
20 (b) notice to the board by January 1 of the year prior to withdrawal.
21 (5) A county withdrawing from participation in the fund, or whose participation in the
22 fund has been revoked for failure to pay its assessments when due, shall forfeit the right to:
23 (a) any previously payed assessment;
24 (b) relief from its obligation to pay its assessment during the period of its participation in
25 the fund; and
26 (c) any benefit from the fund, including reimbursement of costs which accrued after the
27 last day of the period for which the county has paid its assessment.
28 (6) This part may not become effective unless the board has received resolutions before
29 August 1, [1997] 1998, from at least 15 counties adopted as described in Subsection (2).
30 Section S [ 5 ] 6 s . Section 77-32-703 is amended to read:
Text Box

Amend on 2_goldenrod February 3, 1998 31 77-32-703. Computing participating county assessments.

- 4 -

1 (1) [Each participating county shall pay into the fund annually an amount equal to .000025
2 per dollar of taxable value in its county until the board determines the fund is sufficient and it is
3 unlikely that a deficit will occur in the fund in any calendar year.] The board shall determine the
4 amount annually each county shall pay into the fund.
5 (2) (a) After the first year of operation of the fund, any county that elects to initiate
6 participation in the fund, or reestablish participation in the fund after participation was terminated,
7 shall be required to make an equity payment, in addition to the assessment provided in Subsection
8 (1).
9 (b) The equity payment shall be determined by the board and represent what the county's
10 equity in the fund would be if the county had made assessments into the fund for each of the
11 previous two years.
12 (3) (a) If the fund runs a deficit during any calendar year, the participating counties shall
13 pay an amount equal to the deficit in the fund by the end of the first quarter of the following year.
14 (b) In the calendar year following a deficit year, the board shall increase the assessment
15 required by Subsection (1) by an amount at least equal to the deficit of the previous year, which
16 combined amount becomes the base assessment until another deficit year occurs.
17 (4) After the initial year of the fund, if the participating counties are unable to replenish
18 the fund annually to at least $200,000, the board by a majority vote may terminate the fund.
19 (5) If the fund is terminated, all remaining funds shall continue to be administered and
20 disbursed in accordance with the provision of this chapter until exhausted, at which time the fund
21 shall cease to exist.
22 Section S [ 6 ] 7 s . Section 77-32-704 is amended to read:
23 77-32-704. Application and qualification for fund money.
24 (1) Any participating county may apply to the board for benefits from the fund if that
25 county has incurred, or reasonably anticipates incurring, expenses in excess of $20,000 in the
26 defense of an indigent for felony offenses in violation of state law arising out of a single criminal
27 episode.
28 (2) No application shall be made nor benefits provided from the fund for cases filed before
29 September 1,[1997] 1998.
30 (3) (a) If the application of a participating county is approved by the board, the board shall
Text Box

Amend on 2_goldenrod February 3, 1998 31 negotiate, enter into, and administer a contract with counsel for the indigent and costs incurred for

- 5 -

1 the defense of that indigent, including fees for counsel and reimbursement for defense costs
2 incurred by defense counsel.
3 (b) Fees for counsel and reimbursement for defense costs of an indigent are as follows:
4 (i) $20,000 or more shall be paid from the fund; and
5 (ii) up to $20,000 shall be paid by the participating county.
6 (4) Nonparticipating counties are responsible for paying indigent costs in their county and
7 shall not be eligible for any legislative relief. However, nonparticipating counties may provide for
8 payment of indigent costs through an increase in the county tax levy as provided in Section
9 77-32-307.
10 (5) This part may not become effective unless the board has received resolutions before
11 August 1,[1997] 1998, from at least 15 counties adopted as described in Subsection 77-32-702(2).




Legislative Review Note
as of 12-18-97 8:56 AM

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

Office of Legislative Research and General Counsel

- 6 -