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H.B. 118 Enrolled
AN ACT RELATING TO CORRECTIONS AND CRIMINAL PROCEDURE; AMENDING
PROVISIONS REGARDING FELONS SERVING JAIL TIME AS PART OF PROBATION;
PROVIDING DEFINITIONS OF COMPONENTS OF INMATE COSTS; PROVIDING
PROCEDURES FOR ESTABLISHING COSTS FOR REIMBURSEMENT TO COUNTIES
WHO HOUSE STATE INMATES; AND PROVIDING A DELAYED EFFECTIVE DATE FOR
SPECIFIED PROVISIONS.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
77-18-1, as last amended by Chapter 94, Laws of Utah 1998
ENACTS:
64-13c-101, Utah Code Annotated 1953
64-13c-201, Utah Code Annotated 1953
64-13c-301, Utah Code Annotated 1953
64-13c-302, Utah Code Annotated 1953
64-13c-303, Utah Code Annotated 1953
64-13c-304, Utah Code Annotated 1953
REPEALS:
64-13b-101, as enacted by Chapter 268, Laws of Utah 1993
64-13b-201, as enacted by Chapter 268, Laws of Utah 1993
64-13b-301, as enacted by Chapter 268, Laws of Utah 1993
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 64-13c-101 is enacted to read:
64-13c-101. Definitions.
As used in this chapter:
(1) (a) "Core inmate incarceration costs" means the county correctional facility's direct costs
of incarcerating an inmate, including housing, feeding, and clothing. These costs also include the
costs of programs the facility provides for inmates, but these costs do not include programs provided
only for inmates housed at the facility under this chapter.
(b) "Core inmate incarceration costs" do not include costs of inmate transportation services
or medical care.
(2) "Department" means the Department of Corrections.
(3) "Inmate" means felony probationers sentenced to county jail under Subsection
77-18-1 (8), inmates of the state prison system, and parolees.
(4) "Inmate costs" includes core inmate incarceration costs, and also inmate transportation
services and inmate medical care.
(5) "Program" means the Inmate Costs Reimbursement Program created in Section
64-13c-301 .
Section 2. Section 64-13c-201 is enacted to read:
64-13c-201. County housing of state prisoners.
(1) (a) When a person convicted of a felony is committed to serve time in a county
correctional facility as a condition of probation under Subsection 77-18-1 (8), a county shall accept
and house the prisoner in a county correctional facility, subject to available resources. If a county is
unable to accept a person due to lack of resources, the county shall negotiate with another county
to accept and house the person.
(b) The department may contract with a county to house inmates, other than those committed
under Subsection 77-18-1 (8) as a term of probation, in a county or other correctional facility.
(c) The department shall give preference over private entities to county correctional facility
bed spaces for which the department has contracted under Subsection (1)(b).
(2) On and after July 1, 2000, compensation to a county for inmates incarcerated under this
chapter shall be made by the department based on Section 64-13c-301 .
Section 3. Section 64-13c-301 is enacted to read:
64-13c-301. Reimbursement program created -- Funding -- Purposes.
(1) (a) There is created a program known as the Inmate Costs Reimbursement Program.
(b) The program shall be funded by appropriations from the Legislature.
(2) The director of the Department of Corrections shall use the program monies for the sole
purpose of reimbursing counties for costs incurred by housing inmates pursuant to this chapter.
(3) The program monies may not be used for the costs of administering the Inmate Cost
Reimbursement Program under this chapter. Those costs shall be covered by legislative
appropriation.
(4) All funding for the program is nonlapsing.
Section 4. Section 64-13c-302 is enacted to read:
64-13c-302. Procedures for setting county reimbursement for core inmate incarceration
costs, and medical and transportation costs.
(1) In order for counties to receive reimbursement under this chapter, the Utah Sheriffs
Association and the department shall annually before July 1 negotiate for the fiscal year beginning on
July 1 a single reimbursement rate, applicable to all counties, for daily core inmate incarceration costs.
(2) Each county shall negotiate directly with the department to establish reimbursement rates
for providing transportation services and medical care for inmates housed under Section 64-13c-201 .
Section 5. Section 64-13c-303 is enacted to read:
64-13c-303. Payment of reimbursement -- Any shortfall.
(1) (a) The director of the department shall reimburse counties for daily inmate costs
according to the amounts established under Section 64-13c-302 , and to the extent monies are
available in the program.
(b) The department shall by rule establish procedures for the distribution of reimbursement
from the program.
(2) If it becomes apparent that monies in the program will be insufficient to pay all
reimbursement due under this chapter in a timely manner, the department and the counties affected
shall report the shortfall at the next meeting of the interim or standing legislative Law Enforcement
and Criminal Justice Committee as is appropriate for that time of year.
(3) Counties that receive reimbursement from the department under this chapter shall
annually on or before June 30 submit a report to the department that includes:
(a) the costs to the county of housing inmates under Section 64-13c-201 and a comparison
of these costs to the reimbursement rate established under Section 64-13c-302 ;
(b) the number of inmates the county housed under this chapter as:
(i) a condition of a sentence of probation; and
(ii) by contract with the department; and
(c) the total number of inmate days of incarceration provided.
Section 6. Section 64-13c-304 is enacted to read:
64-13c-304. Report to Legislature.
(1) The department shall provide to the legislative Law Enforcement and Criminal Justice
Interim Committee a report regarding housing of inmates under this chapter, including:
(a) core inmate costs established under this chapter;
(b) participating counties;
(c) the costs established for each participating county for transportation and medical care;
and
(d) the numbers of inmates housed as a condition of probation and housed by contract with
the department.
(2) The report shall be submitted annually on or before September 1.
Section 7. Section 77-18-1 is amended to read:
77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation -- Supervision
-- Presentence investigation -- Standards -- Confidentiality -- Terms and conditions --
Restitution -- Termination, revocation, modification, or extension -- Hearings -- Electronic
monitoring.
(1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea in
abeyance agreement, the court may hold the plea in abeyance as provided in Title 77, Chapter 2a,
Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
(2) (a) On a plea of guilty, guilty and mentally ill, no contest, or conviction of any crime or
offense, the court may suspend the imposition or execution of sentence and place the defendant on
probation. The court may place the defendant:
(i) on probation under the supervision of the Department of Corrections except in cases of
class C misdemeanors or infractions;
(ii) on probation with an agency of local government or with a private organization; or
(iii) on bench probation under the jurisdiction of the sentencing court.
(b) (i) The legal custody of all probationers under the supervision of the department is with
the department.
(ii) The legal custody of all probationers under the jurisdiction of the sentencing court is
vested as ordered by the court.
(iii) The court has continuing jurisdiction over all probationers.
(3) (a) The department shall establish supervision and presentence investigation standards for
all individuals referred to the department. These standards shall be based on:
(i) the type of offense;
(ii) the demand for services;
(iii) the availability of agency resources;
(iv) the public safety; and
(v) other criteria established by the department to determine what level of services shall be
provided.
(b) Proposed supervision and investigation standards shall be submitted to the Judicial
Council and the Board of Pardons and Parole on an annual basis for review and comment prior to
adoption by the department.
(c) The Judicial Council and the department shall establish procedures to implement the
supervision and investigation standards.
(d) The Judicial Council and the department shall annually consider modifications to the
standards based upon criteria in Subsection (3)(a) and other criteria as they consider appropriate.
(e) The Judicial Council and the department shall annually prepare an impact report and
submit it to the appropriate legislative appropriations subcommittee.
(4) Notwithstanding other provisions of law, the department is not required to supervise the
probation of persons convicted of class B or C misdemeanors or infractions or to conduct presentence
investigation reports on class C misdemeanors or infractions. However, the department may
supervise the probation of class B misdemeanants in accordance with department standards.
(5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of the
defendant, continue the date for the imposition of sentence for a reasonable period of time for the
purpose of obtaining a presentence investigation report from the department or information from
other sources about the defendant.
(b) The presentence investigation report shall include a victim impact statement describing
the effect of the crime on the victim and the victim's family. The victim impact statement shall:
(i) identify the victim of the offense;
(ii) include a specific statement of the recommended amount of complete restitution as
defined in Subsection 76-3-201 (4), accompanied by a recommendation from the department regarding
the payment of court-ordered restitution as defined in Subsection 76-3-201 (4) by the defendant;
(iii) identify any physical injury suffered by the victim as a result of the offense along with its
seriousness and permanence;
(iv) describe any change in the victim's personal welfare or familial relationships as a result
of the offense;
(v) identify any request for psychological services initiated by the victim or the victim's family
as a result of the offense; and
(vi) contain any other information related to the impact of the offense upon the victim or the
victim's family that is relevant to the trial court's sentencing determination.
(c) The presentence investigation report shall include a specific statement of pecuniary
damages, accompanied by a recommendation from the department regarding the payment of
restitution with interest by the defendant in accordance with Subsection 76-3-201 (4).
(d) The contents of the presentence investigation report, including any diagnostic evaluation
report ordered by the court under Section 76-3-404 , are protected and are not available except by
court order for purposes of sentencing as provided by rule of the Judicial Council or for use by the
department.
(6) (a) The department shall provide the presentence investigation report to the defendant's
attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review,
three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation
report, which have not been resolved by the parties and the department prior to sentencing, shall be
brought to the attention of the sentencing judge, and the judge may grant an additional ten working
days to resolve the alleged inaccuracies of the report with the department. If after ten working days
the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy
on the record.
(b) If a party fails to challenge the accuracy of the presentence investigation report at the time
of sentencing, that matter shall be considered to be waived.
(7) At the time of sentence, the court shall receive any testimony, evidence, or information
the defendant or the prosecuting attorney desires to present concerning the appropriate sentence.
This testimony, evidence, or information shall be presented in open court on record and in the
presence of the defendant.
(8) While on probation, and as a condition of probation, the court may require that the
defendant:
(a) [
(i) pay, in one or several sums, any fine imposed at the time of being placed on probation;
(ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
(iii) provide for the support of others for whose support he is legally liable;
(iv) participate in available treatment programs;
(v) serve a period of time, not to exceed one year, in [
jail the court finds most appropriate;
(vi) serve a term of home confinement, which may include the use of electronic monitoring;
(vii) participate in compensatory service restitution programs, including the compensatory
service program provided in Section 78-11-20.7 ;
(viii) pay for the costs of investigation, probation, and treatment services;
(ix) make restitution or reparation to the victim or victims with interest in accordance with
Subsection 76-3-201 (4); and
(x) comply with other terms and conditions the court considers appropriate; and
(b) if convicted on or after May 5, 1997[
(i) complete high school classwork and obtain a high school graduation diploma, a GED
certificate, or a vocational certificate at the defendant's own expense if the defendant has not received
the diploma, GED certificate, or vocational certificate prior to being placed on probation; or
(ii) provide documentation of the inability to obtain one of the items listed in Subsection
(8)(b)(i) because of:
(A) a diagnosed learning disability; or
(B) other justified cause.
(9) The department, upon order of the court, shall collect and disburse fines, restitution with
interest in accordance with Subsection 76-3-201 (4), and any other costs assessed under Section
64-13-21 during:
(a) the parole period and any extension of that period in accordance with Subsection
77-27-6 (4); and
(b) the probation period in cases for which the court orders supervised probation and any
extension of that period by the department in accordance with Subsection 77-18-1 (10).
(10) (a) (i) Probation may be terminated at any time at the discretion of the court or upon
completion without violation of 36 months probation in felony or class A misdemeanor cases, or 12
months in cases of class B or C misdemeanors or infractions.
(ii) If the defendant, upon expiration or termination of the probation period, owes outstanding
fines, restitution, or other assessed costs, the court may retain jurisdiction of the case and continue
the defendant on bench probation or place the defendant on bench probation for the limited purpose
of enforcing the payment of fines, restitution, including interest, if any, in accordance with Subsection
76-3-201 (4), and other amounts outstanding.
(iii) Upon motion of the prosecutor or victim, or upon its own motion, the court may require
the defendant to show cause why his failure to pay should not be treated as contempt of court or why
the suspended jail or prison term should not be imposed.
(b) The department shall notify the sentencing court and prosecuting attorney in writing in
advance in all cases when termination of supervised probation will occur by law. The notification
shall include a probation progress report and complete report of details on outstanding fines,
restitution, and other amounts outstanding.
(11) (a) (i) Any time served by a probationer outside of confinement after having been
charged with a probation violation and prior to a hearing to revoke probation does not constitute
service of time toward the total probation term unless the probationer is exonerated at a hearing to
revoke the probation.
(ii) Any time served in confinement awaiting a hearing or decision concerning revocation of
probation does not constitute service of time toward the total probation term unless the probationer
is exonerated at the hearing.
(b) The running of the probation period is tolled upon the filing of a violation report with the
court alleging a violation of the terms and conditions of probation or upon the issuance of an order
to show cause or warrant by the court.
(12) (a) (i) Probation may not be modified or extended except upon waiver of a hearing by
the probationer or upon a hearing and a finding in court that the probationer has violated the
conditions of probation.
(ii) Probation may not be revoked except upon a hearing in court and a finding that the
conditions of probation have been violated.
(b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to constitute
violation of the conditions of probation, the court that authorized probation shall determine if the
affidavit establishes probable cause to believe that revocation, modification, or extension of probation
is justified.
(ii) If the court determines there is probable cause, it shall cause to be served on the
defendant a warrant for his arrest or a copy of the affidavit and an order to show cause why his
probation should not be revoked, modified, or extended.
(c) (i) The order to show cause shall specify a time and place for the hearing and shall be
served upon the defendant at least five days prior to the hearing.
(ii) The defendant shall show good cause for a continuance.
(iii) The order to show cause shall inform the defendant of a right to be represented by
counsel at the hearing and to have counsel appointed for him if he is indigent.
(iv) The order shall also inform the defendant of a right to present evidence.
(d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
(ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney shall
present evidence on the allegations.
(iii) The persons who have given adverse information on which the allegations are based shall
be presented as witnesses subject to questioning by the defendant unless the court for good cause
otherwise orders.
(iv) The defendant may call witnesses, appear and speak in his own behalf, and present
evidence.
(e) (i) After the hearing the court shall make findings of fact.
(ii) Upon a finding that the defendant violated the conditions of probation, the court may
order the probation revoked, modified, continued, or that the entire probation term commence anew.
(iii) If probation is revoked, the defendant shall be sentenced or the sentence previously
imposed shall be executed.
(13) Restitution imposed under this chapter and interest accruing in accordance with
Subsection 76-3-201 (4) is considered a debt for willful and malicious injury for purposes of
exceptions listed to discharge in bankruptcy as provided in Title 11 U.S.C.A. Sec. 523, 1985.
(14) The court may order the defendant to commit himself to the custody of the Division of
Mental Health for treatment at the Utah State Hospital as a condition of probation or stay of
sentence, only after the superintendent of the Utah State Hospital or his designee has certified to the
court that:
(a) the defendant is appropriate for and can benefit from treatment at the state hospital;
(b) treatment space at the hospital is available for the defendant; and
(c) persons described in Subsection 62A-12-209 (2)(g) are receiving priority for treatment
over the defendants described in this Subsection (14).
(15) Presentence investigation reports, including presentence diagnostic evaluations, are
classified protected in accordance with Title 63, Chapter 2, Government Records Access and
Management Act. Notwithstanding Sections 63-2-403 and 63-2-404 , the State Records Committee
may not order the disclosure of a presentence investigation report. Except for disclosure at the time
of sentencing pursuant to this section, the department may disclose the presentence investigation only
when:
(a) ordered by the court pursuant to Subsection 63-2-202 (7);
(b) requested by a law enforcement agency or other agency approved by the department for
purposes of supervision, confinement, and treatment of the offender;
(c) requested by the Board of Pardons and Parole;
(d) requested by the subject of the presentence investigation report or the subject's authorized
representative; or
(e) requested by the victim of the crime discussed in the presentence investigation report or
the victim's authorized representative, provided that the disclosure to the victim shall include only
information relating to statements or materials provided by the victim, to the circumstances of the
crime including statements by the defendant, or to the impact of the crime on the victim or the victim's
household.
(16) (a) The court shall consider home confinement as a condition of probation under the
supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5 .
(b) The department shall establish procedures and standards for home confinement, including
electronic monitoring, for all individuals referred to the department in accordance with Subsection
(17).
(17) (a) If the court places the defendant on probation under this section, it may order the
defendant to participate in home confinement through the use of electronic monitoring as described
in this section until further order of the court.
(b) The electronic monitoring shall alert the department and the appropriate law enforcement
unit of the defendant's whereabouts.
(c) The electronic monitoring device shall be used under conditions which require:
(i) the defendant to wear an electronic monitoring device at all times; and
(ii) that a device be placed in the home of the defendant, so that the defendant's compliance
with the court's order may be monitored.
(d) If a court orders a defendant to participate in home confinement through electronic
monitoring as a condition of probation under this section, it shall:
(i) place the defendant on probation under the supervision of the Department of Corrections;
(ii) order the department to place an electronic monitoring device on the defendant and install
electronic monitoring equipment in the residence of the defendant; and
(iii) order the defendant to pay the costs associated with home confinement to the department
or the program provider.
(e) The department shall pay the costs of home confinement through electronic monitoring
only for those persons who have been determined to be indigent by the court.
(f) The department may provide the electronic monitoring described in this section either
directly or by contract with a private provider.
Section 8. Repealer.
This act repeals:
Section 64-13b-101, Definitions.
Section 64-13b-201, Reimbursement for incarceration of state prisoners.
Section 64-13b-301, Budget for jail reimbursement.
Section 9. Effective date.
This act takes effect on May 3, 1999, except that Sections 64-13c-301 and 64-13c-303 take
effect on July 1, 2000.
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