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5 This act modifies provisions dealing with criminal restitution by repealing provisions that
6 were duplicated with the enactment of the Crime Victims Restitution Act in 2001.
7 This act affects sections of Utah Code Annotated 1953 as follows:
9 59-10-529, as last amended by Chapters 86 and 161, Laws of Utah 2000
10 63-25a-403, as last amended by Chapter 235, Laws of Utah 2000
11 63-25a-411, as last amended by Chapter 235, Laws of Utah 2000
12 76-3-201, as last amended by Chapter 209, Laws of Utah 2001
13 77-2a-3, as last amended by Chapter 301, Laws of Utah 1995
14 77-7-5, as last amended by Chapter 126, Laws of Utah 1999
15 77-18-1, as last amended by Chapter 137, Laws of Utah 2001
16 77-18-6, as repealed and reenacted by Chapter 279, Laws of Utah 1999
17 77-27-5, as last amended by Chapter 100, Laws of Utah 1996
18 77-27-6, as last amended by Chapter 94, Laws of Utah 1998
18a h 77-32a-1, as enacted by Chapter 15, Laws of Utah 1980 h
19 77-37-3, as last amended by Chapter 1, Laws of Utah 2000
20 77-38a-302, as enacted by Chapter 137, Laws of Utah 2001
21 77-38a-501, as enacted by Chapter 137, Laws of Utah 2001
23 76-3-201.2, as last amended by Chapter 163, Laws of Utah 1990
24 h [
25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 59-10-529 is amended to read:
27 59-10-529. Overpayment of tax -- Credits -- Refunds.
28 (1) In cases where there has been an overpayment of any tax imposed by this chapter, the
29 amount of overpayment is credited as follows:
30 (a) against any income tax then due from the taxpayer;
31 (b) against:
32 (i) the amount of any judgment against the taxpayer, including one ordering the payment
33 of a fine or of restitution to a victim under [
34 Victims Restitution Act, obtained through due process of law by any entity of state government;
36 (ii) any child support obligation which is due or past due, as determined by the Office of
37 Recovery Services in the Department of Human Services and after notice and an opportunity for
38 an adjudicative proceeding, as provided in Subsection (2); or
39 (c) as bail, to ensure the appearance of the taxpayer before the appropriate authority to
40 resolve an outstanding warrant against the taxpayer for which bail is due, if a court of competent
41 jurisdiction has not approved an alternative form of payment. This bail may be applied to any fine
42 or forfeiture which is due and related to a warrant which is outstanding on or after February 16,
43 1984, and in accordance with Subsections (3) and (4).
44 (2) (a) Subsection (1)(b)(ii) may be exercised only if the Office of Recovery Services has
45 sent written notice to the taxpayer's last-known address or the address on file under Section
46 62A-11-304.4 , stating:
47 (i) the amount of child support that is due or past due as of the date of the notice or other
48 specified date;
49 (ii) that any overpayment shall be applied to reduce the amount of due or past-due child
50 support specified in the notice; and
51 (iii) that the taxpayer may contest the amount of past-due child support specified in the
52 notice by filing a written request for an adjudicative proceeding with the office within 15 days of
53 the notice being sent.
54 (b) The Office of Recovery Services shall establish rules to implement this Subsection (2),
55 including procedures, in accordance with the other provisions of this section, to ensure prompt
56 reimbursement to the taxpayer of any amount of an overpayment of taxes which was credited
57 against a child support obligation in error, and to ensure prompt distribution of properly credited
58 funds to the obligee parent.
59 (3) Subsection (1)(c) may be exercised only if:
60 (a) a court has issued a warrant for the arrest of the taxpayer for failure to post bail, appear,
61 or otherwise satisfy the terms of a citation, summons, or court order; and
62 (b) a notice of intent to apply the overpayment as bail on the issued warrant has been sent
63 to the person's current address on file with the commission.
64 (4) (a) The commission shall deliver the overpayment applied as bail to the court that
65 issued the warrant of arrest. The clerk of the court is authorized to endorse the check or
66 commission warrant of payment on behalf of the payees and deposit the monies in the court
68 (b) The court receiving the overpayment applied as bail shall order withdrawal of the
69 warrant for arrest of the taxpayer if the case is one for which a personal appearance of the taxpayer
70 is not required and if the dollar amount of the overpayment represents the full dollar amount of
71 bail. In all other cases, the court receiving the overpayment applied as bail is not required to order
72 the withdrawal of the warrant of arrest of the taxpayer during the 40-day period, and the taxpayer
73 may be arrested on the warrant. However, the bail amount shall be reduced by the amount of tax
74 overpayment received by the court.
75 (c) If the taxpayer fails to respond to the notice described in Subsection (3), or to resolve
76 the warrant within 40 days after the notice was sent under that subsection, the overpayment applied
77 as bail is forfeited and notice of the forfeiture shall be mailed to the taxpayer at the current address
78 on file with the commission. The court may then issue another warrant or allow the original
79 warrant to remain in force if:
80 (i) the taxpayer has not complied with an order of the court;
81 (ii) the taxpayer has failed to appear and respond to a criminal charge for which a personal
82 appearance is required; or
83 (iii) the taxpayer has paid partial but not full bail in a case for which a personal appearance
84 is not required.
85 (5) If the alleged violations named in the warrant are later resolved in favor of the
86 taxpayer, the bail amount shall be remitted to the taxpayer.
87 (6) Any balance shall be refunded immediately to the taxpayer.
88 (7) (a) If a refund or credit is due because the amount of tax deducted and withheld from
89 wages exceeds the actual tax due, a refund or credit may not be made or allowed unless the
90 taxpayer or his legal representative files with the commission a tax return claiming the refund or
92 (i) within three years from the due date of the return, plus the period of any extension of
93 time for filing the return provided for in Subsection (7)(c); or
94 (ii) within two years from the date the tax was paid, whichever period is later.
95 (b) Except as provided in Subsection (7)(d), in other instances where a refund or credit of
96 tax which has not been deducted and withheld from income is due, a credit or refund may not be
97 allowed or made after three years from the time the tax was paid, unless, before the expiration of
98 the period, a claim is filed by the taxpayer or his legal representative.
99 (c) Beginning on July 1, 1998, the commission shall extend the period for a taxpayer to
100 file a claim under Subsection (7)(a)(i) if:
101 (i) the time period for filing a claim under Subsection (7)(a) has not expired; and
102 (ii) the commission and the taxpayer sign a written agreement:
103 (A) authorizing the extension; and
104 (B) providing for the length of the extension.
105 (d) Notwithstanding Subsection (7)(b), beginning on July 1, 1998, the commission shall
106 extend the period for a taxpayer to file a claim under Subsection (7)(b) if:
107 (i) the three-year period under Subsection (7)(b) has not expired; and
108 (ii) the commission and the taxpayer sign a written agreement:
109 (A) authorizing the extension; and
110 (B) providing for the length of the extension.
111 (8) The fine and bail forfeiture provisions of this section apply to all warrants and fines
112 issued in cases charging the taxpayer with a felony, a misdemeanor, or an infraction described in
113 this section which are outstanding on or after February 16, 1984.
114 (9) If the amount allowable as a credit for tax withheld from the taxpayer exceeds the tax
115 to which the credit relates, the excess is considered an overpayment.
116 (10) A claim for credit or refund of an overpayment which is attributable to the application
117 to the taxpayer of a net operating loss carryback shall be filed within three years from the time the
118 return was due for the taxable year of the loss.
119 (11) If there has been an overpayment of the tax which is required to be deducted and
120 withheld under Section 59-10-402 , a refund shall be made to the employer only to the extent that
121 the amount of overpayment was not deducted and withheld by the employer.
122 (12) If there is no tax liability for a period in which an amount is paid as income tax, the
123 amount is an overpayment.
124 (13) If an income tax is assessed or collected after the expiration of the applicable period
125 of limitation, that amount is an overpayment.
126 (14) (a) If a taxpayer is required to report a change or correction in federal taxable income
127 reported on his federal income tax return, or to report a change or correction which is treated in
128 the same manner as if it were an overpayment for federal income tax purposes, or to file an
129 amended return with the commission, a claim for credit or refund of any resulting overpayment
130 of tax shall be filed by the taxpayer within two years from the date the notice of the change,
131 correction, or amended return was required to be filed with the commission.
132 (b) If the report or amended return is not filed within 90 days, interest on any resulting
133 refund or credit ceases to accrue after the 90-day period.
134 (c) The amount of the credit or refund may not exceed the amount of the reduction in tax
135 attributable to the federal change, correction, or items amended on the taxpayer's amended federal
136 income tax return.
137 (d) Except as specifically provided, this section does not affect the amount or the time
138 within which a claim for credit or refund may be filed.
139 (15) No credit or refund may be allowed or made if the overpayment is less than $1.
140 (16) The amount of the credit or refund may not exceed the tax paid during the three years
141 immediately preceding the filing of the claim, or if no claim is filed, then during the three years
142 immediately preceding the allowance of the credit or refund.
143 (17) In the case of an overpayment of tax by the employer under the withholding
144 provisions of this chapter, a refund or credit shall be made to the employer only to the extent that
145 the amount of the overpayment was not deducted and withheld from wages under the provisions
146 of this chapter.
147 (18) If a taxpayer who is entitled to a refund under this chapter dies, the commission may
148 make payment to the duly appointed executor or administrator of the taxpayer's estate. If there is
149 no executor or administrator, payment may be made to those persons who establish entitlement to
150 inherit the property of the decedent in the proportions set out in Title 75, Utah Uniform Probate
152 (19) Where an overpayment relates to adjustments to net income referred to in Subsection
153 59-10-536 (3)(c), credit may be allowed or a refund paid any time before the expiration of the
154 period within which a deficiency may be assessed.
155 (20) An overpayment of a tax imposed by this chapter shall accrue interest at the rate and
156 in the manner prescribed in Section 59-1-402 .
157 Section 2. Section 63-25a-403 is amended to read:
158 63-25a-403. Restitution -- Reparations not to supplant restitution -- Assignment of
159 claim for restitution judgment to Reparations Office.
160 (1) A reparations award shall not supplant restitution as established under [
163 (2) The court shall not consider a reparations award when determining the order of
164 restitution nor when enforcing restitution.
165 (3) If, due to reparation payments to a victim, the Reparations Office is assigned under
166 Section 63-25a-419 a claim for the victim's judgment for restitution or a portion of the restitution,
167 the Reparations Office may file with the sentencing court a notice of the assignment. The notice
168 of assignment shall be signed by the victim and a Reparations Officer and shall state the amount
169 of the claim assigned.
170 (4) Upon conviction and sentencing of the defendant, the court shall enter a civil judgment
171 for complete restitution as provided in Section [
172 Office as the assignee of the assigned portion of the judgment.
173 (5) If the notice of assignment is filed after sentencing, the court shall modify the civil
174 judgment for restitution to identify the Reparations Office as the assignee of the assigned portion
175 of the judgment.
176 Section 3. Section 63-25a-411 is amended to read:
177 63-25a-411. Compensable losses and amounts.
178 A reparations award under this chapter may be made if:
179 (1) the reparations officer finds the claim satisfies the requirements for the award under
180 the provisions of this chapter and the rules of the board;
181 (2) funds are available in the trust fund;
182 (3) the person for whom the award of reparations is to be paid is otherwise eligible under
183 this act;
184 (4) the claim is for an allowable expense incurred by the victim, as follows:
185 (a) reasonable and necessary charges incurred for products, services, and accommodations;
186 (b) inpatient and outpatient medical treatment and physical therapy, subject to rules
187 promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act;
188 (c) mental health counseling which:
189 (i) is set forth in a mental health treatment plan which has been approved prior to any
190 payment by a reparations officer; and
191 (ii) qualifies within any further rules promulgated by the board pursuant to Title 63,
192 Chapter 46a, Utah Administrative Rulemaking Act;
193 (d) actual loss of past earnings and anticipated loss of future earnings because of a death
194 or disability resulting from the personal injury at a rate not to exceed 66-2/3% of the person's
195 weekly gross salary or wages or the maximum amount allowed under the state workers'
196 compensation statute;
197 (e) care of minor children enabling a victim or spouse of a victim, but not both of them,
198 to continue gainful employment at a rate per child per week as determined under rules established
199 by the board;
200 (f) funeral and burial expenses for death caused by the criminally injurious conduct,
201 subject to rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
202 Rulemaking Act;
203 (g) loss of support to the dependent or dependents not otherwise compensated for a
204 pecuniary loss for personal injury, for as long as the dependence would have existed had the victim
205 survived, at a rate not to exceed 66-2/3% of the person's weekly salary or wages or the maximum
206 amount allowed under the state workers' compensation statute, whichever is less;
207 (h) personal property necessary and essential to the health or safety of the victim as defined
208 by rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
209 Rulemaking Act; and
210 (i) medical examinations as defined in Subsection 63-25a-402 (19), subject to rules
211 promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
212 which may allow for exemptions from Sections 63-25a-409 , 63-25a-412 , and 63-25a-413 .
213 (5) If a Utah resident suffers injury or death as a result of criminally injurious conduct
214 inflicted in a state, territory, or country that does not provide a reciprocal crime victims'
215 compensation program, the Utah resident has the same rights under this chapter as if the injurious
216 conduct occurred in this state.
217 (6) An award of reparations shall not exceed $25,000 in the aggregate unless the victim
218 is entitled to proceeds in excess of that amount as provided in Subsection [
219 77-38a-403 (2). However, reparations for actual medical expenses incurred as a result of homicide,
220 attempted homicide, aggravated assault, or DUI offenses, may be awarded up to $50,000 in the
222 Section 4. Section 76-3-201 is amended to read:
223 76-3-201. Definitions -- Sentences or combination of sentences allowed -- Civil
224 penalties -- Hearing.
225 (1) As used in this section:
226 (a) "Conviction" includes a:
227 (i) judgment of guilt; and
228 (ii) plea of guilty.
229 (b) "Criminal activities" means any offense of which the defendant is convicted or any
230 other criminal conduct for which the defendant admits responsibility to the sentencing court with
231 or without an admission of committing the criminal conduct.
232 (c) "Pecuniary damages" means all special damages, but not general damages, which a
233 person could recover against the defendant in a civil action arising out of the facts or events
234 constituting the defendant's criminal activities and includes the money equivalent of property
235 taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical
237 (d) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
238 victim, [
239 payment for expenses to a governmental entity for extradition or transportation and as further
240 defined in [
241 (e) (i) "Victim" means any person who the court determines has suffered pecuniary
242 damages as a result of the defendant's criminal activities.
243 (ii) "Victim" does not include any coparticipant in the defendant's criminal activities.
244 (2) Within the limits prescribed by this chapter, a court may sentence a person convicted
245 of an offense to any one of the following sentences or combination of them:
246 (a) to pay a fine;
247 (b) to removal or disqualification from public or private office;
248 (c) to probation unless otherwise specifically provided by law;
249 (d) to imprisonment;
250 (e) on or after April 27, 1992, to life in prison without parole; or
251 (f) to death.
252 (3) (a) This chapter does not deprive a court of authority conferred by law to:
253 (i) forfeit property;
254 (ii) dissolve a corporation;
255 (iii) suspend or cancel a license;
256 (iv) permit removal of a person from office;
257 (v) cite for contempt; or
258 (vi) impose any other civil penalty.
259 (b) A civil penalty may be included in a sentence.
260 (4) (a) [
261 damages, in addition to any other sentence it may impose, the court shall order that the defendant
262 make restitution to the victims [
263 the defendant has agreed to make restitution as part of a plea agreement. [
266 criteria and procedures as provided in [
267 Victims Restitution Act.
314 (5) (a) In addition to any other sentence the court may impose, the court shall order the
315 defendant to pay restitution of governmental transportation expenses if the defendant was:
316 (i) transported pursuant to court order from one county to another within the state at
317 governmental expense to resolve pending criminal charges;
318 (ii) charged with a felony or a class A, B, or C misdemeanor; and
319 (iii) convicted of a crime.
320 (b) The court may not order the defendant to pay restitution of governmental transportation
321 expenses if any of the following apply:
322 (i) the defendant is charged with an infraction or on a subsequent failure to appear a
323 warrant is issued for an infraction; or
324 (ii) the defendant was not transported pursuant to a court order.
325 (c) (i) Restitution of governmental transportation expenses under Subsection (5)(a)(i) shall
326 be calculated according to the following schedule:
327 (A) $75 for up to 100 miles a defendant is transported;
328 (B) $125 for 100 up to 200 miles a defendant is transported; and
329 (C) $250 for 200 miles or more a defendant is transported.
330 (ii) The schedule of restitution under Subsection (5)(c)(i) applies to each defendant
331 transported regardless of the number of defendants actually transported in a single trip.
332 (d) If a defendant has been extradited to this state under Title 77, Chapter 30, Extradition,
333 to resolve pending criminal charges and is convicted of criminal activity in the county to which
334 he has been returned, the court may, in addition to any other sentence it may impose, order that the
335 defendant make restitution for costs expended by any governmental entity for the extradition.
336 (6) (a) If a statute under which the defendant was convicted mandates that one of three
337 stated minimum terms shall be imposed, the court shall order imposition of the term of middle
338 severity unless there are circumstances in aggravation or mitigation of the crime.
339 (b) Prior to or at the time of sentencing, either party may submit a statement identifying
340 circumstances in aggravation or mitigation or presenting additional facts. If the statement is in
341 writing, it shall be filed with the court and served on the opposing party at least four days prior to
342 the time set for sentencing.
343 (c) In determining whether there are circumstances that justify imposition of the highest
344 or lowest term, the court may consider the record in the case, the probation officer's report, other
345 reports, including reports received under Section 76-3-404 , statements in aggravation or mitigation
346 submitted by the prosecution or the defendant, and any further evidence introduced at the
347 sentencing hearing.
348 (d) The court shall set forth on the record the facts supporting and reasons for imposing
349 the upper or lower term.
350 (e) In determining a just sentence, the court shall consider sentencing guidelines regarding
351 aggravating and mitigating circumstances promulgated by the Sentencing Commission.
352 (7) If during the commission of a crime described as child kidnapping, rape of a child,
353 object rape of a child, sodomy upon a child, or sexual abuse of a child, the defendant causes
354 substantial bodily injury to the child, and if the charge is set forth in the information or indictment
355 and admitted by the defendant, or found true by a judge or jury at trial, the defendant shall be
356 sentenced to the highest minimum term in state prison. This subsection takes precedence over any
357 conflicting provision of law.
387 Section 5. Section 77-2a-3 is amended to read:
388 77-2a-3. Manner of entry of plea -- Powers of court.
389 (1) Acceptance of any plea in anticipation of a plea in abeyance agreement shall be done
390 in full compliance with the provisions of Rule 11, Utah Rules of Criminal Procedure.
391 (2) A plea in abeyance agreement may provide that the court may, upon finding that the
392 defendant has successfully completed the terms of the agreement:
393 (a) reduce the degree of the offense and enter judgment of conviction and impose sentence
394 for a lower degree of offense; or
395 (b) allow withdrawal of defendant's plea and order the dismissal of the case.
396 (3) Upon finding that a defendant has successfully completed the terms of a plea in
397 abeyance agreement, the court shall reduce the degree of the offense, dismiss the case only as
398 provided in the plea in abeyance agreement or as agreed to by all parties. Upon sentencing a
399 defendant for any lesser offense pursuant to a plea in abeyance agreement, the court may not
400 invoke Section 76-3-402 to further reduce the degree of the offense.
401 (4) The court may require the Department of Corrections to assist in the administration of
402 the plea in abeyance agreement as if the defendant were on probation to the court under Section
403 77-18-1 .
404 (5) The court may upon acceptance of a plea in abeyance agreement and pursuant to the
405 terms of the agreement:
406 (a) order the defendant to pay a nonrefundable plea in abeyance fee, which shall be
407 allocated in the same manner as if it had been paid as a fine and shall not exceed in amount the
408 maximum fine which could have been imposed upon conviction and sentencing for the same
410 (b) order the defendant to pay all or a portion of the costs of administration of the
412 (c) order the defendant to pay restitution to the victims of his actions as provided in
414 (d) order the defendant to pay the costs of any rehabilitative program required by the terms
415 of the agreement; and
416 (e) order the defendant to comply with any other conditions which could have been
417 imposed as conditions of probation upon conviction and sentencing for the same offense.
418 (6) A court may not hold a plea in abeyance without the consent of both the prosecuting
419 attorney and the defendant. A decision by a prosecuting attorney not to agree to a plea in abeyance
420 is not subject to judicial review.
421 (7) No plea may be held in abeyance in any case involving a sexual offense against a
422 victim who is under the age of 14.
423 Section 6. Section 77-7-5 is amended to read:
424 77-7-5. Issuance of warrant -- Time and place arrests may be made -- Contents of
425 warrant -- Responsibility for transporting prisoners -- Court clerk to dispense restitution for
427 (1) A magistrate may issue a warrant for arrest upon finding probable cause to believe that
428 the person to be arrested has committed a public offense. If the offense charged is:
429 (a) a felony, the arrest upon a warrant may be made at any time of the day or night; or
430 (b) a misdemeanor, the arrest upon a warrant can be made at night only if:
431 (i) the magistrate has endorsed authorization to do so on the warrant;
432 (ii) the person to be arrested is upon a public highway, in a public place, or in a place open
433 to or accessible to the public; or
434 (iii) the person to be arrested is encountered by a peace officer in the regular course of that
435 peace officer's investigation of a criminal offense unrelated to the misdemeanor warrant for arrest.
436 (2) For the purpose of Subsection (1):
437 (a) daytime hours are the hours of [
438 (b) nighttime hours are the hours after [
439 (3) (a) If the magistrate determines that the accused must appear in court, the magistrate
440 shall include in the arrest warrant the name of the law enforcement agency in the county or
441 municipality with jurisdiction over the offense charged.
442 (b) (i) The law enforcement agency identified by the magistrate under Subsection (3)(a)
443 is responsible for providing inter-county transportation of the defendant, if necessary, from the
444 arresting law enforcement agency to the court site.
445 (ii) The law enforcement agency named on the warrant may contract with another law
446 enforcement agency to have a defendant transported.
447 (c) (i) The law enforcement agency identified by the magistrate under Subsection (a) as
448 responsible for transporting the defendant shall provide to the court clerk of the court in which the
449 defendant is tried, an affidavit stating that the defendant was transported, indicating the law
450 enforcement agency responsible for the transportation, and stating the number of miles the
451 defendant was transported.
452 (ii) The court clerk shall account for restitution paid under [
453 76-3-201 (5) for governmental transportation expenses and dispense restitution monies collected
454 by the court to the law enforcement agency responsible for the transportation of a convicted
456 Section 7. Section 77-18-1 is amended to read:
457 77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation -- Supervision
458 -- Presentence investigation -- Standards -- Confidentiality -- Terms and conditions --
459 Termination, revocation, modification, or extension -- Hearings -- Electronic monitoring.
460 (1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea in
461 abeyance agreement, the court may hold the plea in abeyance as provided in Title 77, Chapter 2a,
462 Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
463 (2) (a) On a plea of guilty, guilty and mentally ill, no contest, or conviction of any crime
464 or offense, the court may suspend the imposition or execution of sentence and place the defendant
465 on probation. The court may place the defendant:
466 (i) on probation under the supervision of the Department of Corrections except in cases
467 of class C misdemeanors or infractions;
468 (ii) on probation with an agency of local government or with a private organization; or
469 (iii) on bench probation under the jurisdiction of the sentencing court.
470 (b) (i) The legal custody of all probationers under the supervision of the department is with
471 the department.
472 (ii) The legal custody of all probationers under the jurisdiction of the sentencing court is
473 vested as ordered by the court.
474 (iii) The court has continuing jurisdiction over all probationers.
475 (3) (a) The department shall establish supervision and presentence investigation standards
476 for all individuals referred to the department. These standards shall be based on:
477 (i) the type of offense;
478 (ii) the demand for services;
479 (iii) the availability of agency resources;
480 (iv) the public safety; and
481 (v) other criteria established by the department to determine what level of services shall
482 be provided.
483 (b) Proposed supervision and investigation standards shall be submitted to the Judicial
484 Council and the Board of Pardons and Parole on an annual basis for review and comment prior to
485 adoption by the department.
486 (c) The Judicial Council and the department shall establish procedures to implement the
487 supervision and investigation standards.
488 (d) The Judicial Council and the department shall annually consider modifications to the
489 standards based upon criteria in Subsection (3)(a) and other criteria as they consider appropriate.
490 (e) The Judicial Council and the department shall annually prepare an impact report and
491 submit it to the appropriate legislative appropriations subcommittee.
492 (4) Notwithstanding other provisions of law, the department is not required to supervise
493 the probation of persons convicted of class B or C misdemeanors or infractions or to conduct
494 presentence investigation reports on class C misdemeanors or infractions. However, the
495 department may supervise the probation of class B misdemeanants in accordance with department
497 (5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of the
498 defendant, continue the date for the imposition of sentence for a reasonable period of time for the
499 purpose of obtaining a presentence investigation report from the department or information from
500 other sources about the defendant.
501 (b) The presentence investigation report shall include a victim impact statement according
502 to guidelines set in Section 77-38a-203 describing the effect of the crime on the victim and the
503 victim's family. [
518 (c) The presentence investigation report shall include a specific statement of pecuniary
519 damages, accompanied by a recommendation from the department regarding the payment of
520 restitution with interest by the defendant in accordance with [
521 Chapter 38a, Crime Victims Restitution Act.
522 (d) The contents of the presentence investigation report, including any diagnostic
523 evaluation report ordered by the court under Section 76-3-404 , are protected and are not available
524 except by court order for purposes of sentencing as provided by rule of the Judicial Council or for
525 use by the department.
526 (6) (a) The department shall provide the presentence investigation report to the defendant's
527 attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review,
528 three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation
529 report, which have not been resolved by the parties and the department prior to sentencing, shall
530 be brought to the attention of the sentencing judge, and the judge may grant an additional ten
531 working days to resolve the alleged inaccuracies of the report with the department. If after ten
532 working days the inaccuracies cannot be resolved, the court shall make a determination of
533 relevance and accuracy on the record.
534 (b) If a party fails to challenge the accuracy of the presentence investigation report at the
535 time of sentencing, that matter shall be considered to be waived.
536 (7) At the time of sentence, the court shall receive any testimony, evidence, or information
537 the defendant or the prosecuting attorney desires to present concerning the appropriate sentence.
538 This testimony, evidence, or information shall be presented in open court on record and in the
539 presence of the defendant.
540 (8) While on probation, and as a condition of probation, the court may require that the
542 (a) perform any or all of the following:
543 (i) pay, in one or several sums, any fine imposed at the time of being placed on probation;
544 (ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
545 (iii) provide for the support of others for whose support he is legally liable;
546 (iv) participate in available treatment programs;
547 (v) serve a period of time, not to exceed one year, in a county jail designated by the
548 department, after considering any recommendation by the court as to which jail the court finds
549 most appropriate;
550 (vi) serve a term of home confinement, which may include the use of electronic
552 (vii) participate in compensatory service restitution programs, including the compensatory
553 service program provided in Section 78-11-20.7 ;
554 (viii) pay for the costs of investigation, probation, and treatment services;
555 (ix) make restitution or reparation to the victim or victims with interest in accordance with
557 (x) comply with other terms and conditions the court considers appropriate; and
558 (b) if convicted on or after May 5, 1997:
559 (i) complete high school classwork and obtain a high school graduation diploma, a GED
560 certificate, or a vocational certificate at the defendant's own expense if the defendant has not
561 received the diploma, GED certificate, or vocational certificate prior to being placed on probation;
563 (ii) provide documentation of the inability to obtain one of the items listed in Subsection
564 (8)(b)(i) because of:
565 (A) a diagnosed learning disability; or
566 (B) other justified cause.
567 (9) The department shall collect and disburse the account receivable as defined by Section
568 76-3-201.1 , with interest and any other costs assessed under Section 64-13-21 during:
569 (a) the parole period and any extension of that period in accordance with Subsection
570 77-27-6 (4); and
571 (b) the probation period in cases for which the court orders supervised probation and any
572 extension of that period by the department in accordance with Subsection 77-18-1 (10).
573 (10) (a) (i) Probation may be terminated at any time at the discretion of the court or upon
574 completion without violation of 36 months probation in felony or class A misdemeanor cases, or
575 12 months in cases of class B or C misdemeanors or infractions.
576 (ii) (A) If, upon expiration or termination of the probation period under Subsection
577 (10)(a)(i), there remains an unpaid balance upon the account receivable as defined in Section
578 76-3-201.1 , the court may retain jurisdiction of the case and continue the defendant on bench
579 probation for the limited purpose of enforcing the payment of the account receivable.
580 (B) In accordance with Section 77-18-6 , the court shall record in the registry of civil
581 judgments any unpaid balance not already recorded and immediately transfer responsibility to
582 collect the account to the Office of State Debt Collection.
583 (iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its
584 own motion, the court may require the defendant to show cause why his failure to pay should not
585 be treated as contempt of court.
586 (b) (i) The department shall notify the sentencing court, the Office of State Debt
587 Collection, and the prosecuting attorney in writing in advance in all cases when termination of
588 supervised probation will occur by law.
589 (ii) The notification shall include a probation progress report and complete report of details
590 on outstanding accounts receivable.
591 (11) (a) (i) Any time served by a probationer outside of confinement after having been
592 charged with a probation violation and prior to a hearing to revoke probation does not constitute
593 service of time toward the total probation term unless the probationer is exonerated at a hearing
594 to revoke the probation.
595 (ii) Any time served in confinement awaiting a hearing or decision concerning revocation
596 of probation does not constitute service of time toward the total probation term unless the
597 probationer is exonerated at the hearing.
598 (b) The running of the probation period is tolled upon the filing of a violation report with
599 the court alleging a violation of the terms and conditions of probation or upon the issuance of an
600 order to show cause or warrant by the court.
601 (12) (a) (i) Probation may not be modified or extended except upon waiver of a hearing
602 by the probationer or upon a hearing and a finding in court that the probationer has violated the
603 conditions of probation.
604 (ii) Probation may not be revoked except upon a hearing in court and a finding that the
605 conditions of probation have been violated.
606 (b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to constitute
607 violation of the conditions of probation, the court that authorized probation shall determine if the
608 affidavit establishes probable cause to believe that revocation, modification, or extension of
609 probation is justified.
610 (ii) If the court determines there is probable cause, it shall cause to be served on the
611 defendant a warrant for his arrest or a copy of the affidavit and an order to show cause why his
612 probation should not be revoked, modified, or extended.
613 (c) (i) The order to show cause shall specify a time and place for the hearing and shall be
614 served upon the defendant at least five days prior to the hearing.
615 (ii) The defendant shall show good cause for a continuance.
616 (iii) The order to show cause shall inform the defendant of a right to be represented by
617 counsel at the hearing and to have counsel appointed for him if he is indigent.
618 (iv) The order shall also inform the defendant of a right to present evidence.
619 (d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
620 (ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney shall
621 present evidence on the allegations.
622 (iii) The persons who have given adverse information on which the allegations are based
623 shall be presented as witnesses subject to questioning by the defendant unless the court for good
624 cause otherwise orders.
625 (iv) The defendant may call witnesses, appear and speak in his own behalf, and present
627 (e) (i) After the hearing the court shall make findings of fact.
628 (ii) Upon a finding that the defendant violated the conditions of probation, the court may
629 order the probation revoked, modified, continued, or that the entire probation term commence
631 (iii) If probation is revoked, the defendant shall be sentenced or the sentence previously
632 imposed shall be executed.
633 (13) The court may order the defendant to commit himself to the custody of the Division
634 of Mental Health for treatment at the Utah State Hospital as a condition of probation or stay of
635 sentence, only after the superintendent of the Utah State Hospital or his designee has certified to
636 the court that:
637 (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
638 (b) treatment space at the hospital is available for the defendant; and
639 (c) persons described in Subsection 62A-12-209 (2)(g) are receiving priority for treatment
640 over the defendants described in this Subsection (13).
641 (14) Presentence investigation reports, including presentence diagnostic evaluations, are
642 classified protected in accordance with Title 63, Chapter 2, Government Records Access and
643 Management Act. Notwithstanding Sections 63-2-403 and 63-2-404 , the State Records Committee
644 may not order the disclosure of a presentence investigation report. Except for disclosure at the
645 time of sentencing pursuant to this section, the department may disclose the presentence
646 investigation only when:
647 (a) ordered by the court pursuant to Subsection 63-2-202 (7);
648 (b) requested by a law enforcement agency or other agency approved by the department
649 for purposes of supervision, confinement, and treatment of the offender;
650 (c) requested by the Board of Pardons and Parole;
651 (d) requested by the subject of the presentence investigation report or the subject's
652 authorized representative; or
653 (e) requested by the victim of the crime discussed in the presentence investigation report
654 or the victim's authorized representative, provided that the disclosure to the victim shall include
655 only information relating to statements or materials provided by the victim, to the circumstances
656 of the crime including statements by the defendant, or to the impact of the crime on the victim or
657 the victim's household.
658 (15) (a) The court shall consider home confinement as a condition of probation under the
659 supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5 .
660 (b) The department shall establish procedures and standards for home confinement,
661 including electronic monitoring, for all individuals referred to the department in accordance with
662 Subsection (16).
663 (16) (a) If the court places the defendant on probation under this section, it may order the
664 defendant to participate in home confinement through the use of electronic monitoring as described
665 in this section until further order of the court.
666 (b) The electronic monitoring shall alert the department and the appropriate law
667 enforcement unit of the defendant's whereabouts.
668 (c) The electronic monitoring device shall be used under conditions which require:
669 (i) the defendant to wear an electronic monitoring device at all times; and
670 (ii) that a device be placed in the home of the defendant, so that the defendant's compliance
671 with the court's order may be monitored.
672 (d) If a court orders a defendant to participate in home confinement through electronic
673 monitoring as a condition of probation under this section, it shall:
674 (i) place the defendant on probation under the supervision of the Department of
676 (ii) order the department to place an electronic monitoring device on the defendant and
677 install electronic monitoring equipment in the residence of the defendant; and
678 (iii) order the defendant to pay the costs associated with home confinement to the
679 department or the program provider.
680 (e) The department shall pay the costs of home confinement through electronic monitoring
681 only for those persons who have been determined to be indigent by the court.
682 (f) The department may provide the electronic monitoring described in this section either
683 directly or by contract with a private provider.
684 Section 8. Section 77-18-6 is amended to read:
685 77-18-6. Judgment to pay fine or restitution constitutes a lien.
686 (1) (a) In cases not supervised by the Department of Corrections, the clerk of the district
687 court shall:
688 (i) transfer the responsibility to collect past due accounts receivable to the Office of State
689 Debt Collection when the accounts receivable are 90 days or more past due; and
690 (ii) before transferring the responsibility to collect the past due account receivable to the
691 Office of State Debt Collection, record each judgment of conviction of a crime that orders the
692 payment of a fine, forfeiture, surcharge, cost permitted by statute, or fee in the registry of civil
693 judgments, listing the Office of State Debt Collection as the judgment creditor.
694 (b) (i) The clerk of court shall record each judgment of conviction that orders the payment
695 of restitution to a victim [
696 victim, or the estate of the victim, as the judgment creditor.
697 (ii) The Department of Corrections shall collect the judgment on behalf of the victim as
698 provided in Subsection 77-18-1 (9).
699 (iii) The court shall collect the judgment on behalf of the victim as provided in Subsection
700 78-7-33 (2).
701 (iv) The victim may collect the judgment.
702 (v) The victim is responsible for timely renewal of the judgment under Section 78-22-1 .
703 (2) When a fine, forfeiture, surcharge, cost, fee, or restitution is recorded in the registry
704 of civil judgments, the judgment:
705 (a) constitutes a lien;
706 (b) has the same effect and is subject to the same rules as a judgment for money in a civil
707 action; and
708 (c) may be collected by any means authorized by law for the collection of a civil judgment.
709 Section 9. Section 77-27-5 is amended to read:
710 77-27-5. Board of Pardons and Parole authority.
711 (1) (a) The Board of Pardons and Parole shall determine by majority decision when and
712 under what conditions, subject to this chapter and other laws of the state, persons committed to
713 serve sentences in class A misdemeanor cases at penal or correctional facilities which are under
714 the jurisdiction of the Department of Corrections, and all felony cases except treason or
715 impeachment or as otherwise limited by law, may be released upon parole, pardoned, restitution
716 ordered, or have their fines, forfeitures, or restitution remitted, or their sentences commuted or
718 (b) The board may sit together or in panels to conduct hearings. The chair shall appoint
719 members to the panels in any combination and in accordance with rules promulgated by the board,
720 except in hearings involving commutation and pardons. The chair may participate on any panel
721 and when doing so is chair of the panel. The chair of the board may designate the chair for any
722 other panel.
723 (c) No restitution may be ordered, no fine, forfeiture, or restitution remitted, no parole,
724 pardon, or commutation granted or sentence terminated, except after a full hearing before the board
725 or the board's appointed examiner in open session. Any action taken under this subsection other
726 than by a majority of the board shall be affirmed by a majority of the board.
727 (d) A commutation or pardon may be granted only after a full hearing before the board.
728 (e) The board shall determine restitution in an amount that does not exceed complete
729 restitution if determined by the court in accordance with Section [
730 (2) (a) In the case of original parole grant hearings, rehearings, and parole revocation
731 hearings, timely prior notice of the time and place of the hearing shall be given to the defendant,
732 the county or district attorney's office responsible for prosecution of the case, the sentencing court,
733 law enforcement officials responsible for the defendant's arrest and conviction, and whenever
734 possible, the victim or the victim's family.
735 (b) Notice to the victim, his representative, or his family shall include information
736 provided in Section 77-27-9.5 , and any related rules made by the board under that section. This
737 information shall be provided in terms that are reasonable for the lay person to understand.
738 (3) Decisions of the board in cases involving paroles, pardons, commutations or
739 terminations of sentence, restitution, or remission of fines or forfeitures are final and are not
740 subject to judicial review. Nothing in this section prevents the obtaining or enforcement of a civil
741 judgment, including restitution as provided in Section 77-27-6 .
742 (4) This chapter may not be construed as a denial of or limitation of the governor's power
743 to grant respite or reprieves in all cases of convictions for offenses against the state, except treason
744 or conviction on impeachment. However, respites or reprieves may not extend beyond the next
745 session of the Board of Pardons and Parole and the board, at that session, shall continue or
746 terminate the respite or reprieve, or it may commute the punishment, or pardon the offense as
747 provided. In the case of conviction for treason, the governor may suspend execution of the
748 sentence until the case is reported to the Legislature at its next session. The Legislature shall then
749 either pardon or commute the sentence, or direct its execution.
750 (5) In determining when, where, and under what conditions offenders serving sentences
751 may be paroled, pardoned, have restitution ordered, or have their fines or forfeitures remitted, or
752 their sentences commuted or terminated, the board shall consider whether the persons have made
753 or are prepared to make restitution as ascertained in accordance with the standards and procedures
754 of Section [
755 forfeitures, or commutation or termination of sentence.
756 (6) In determining whether parole may be terminated, the board shall consider the offense
757 committed by the parolee, the parole period as provided in Section 76-3-202 , and in accordance
758 with Section 77-27-13 .
759 Section 10. Section 77-27-6 is amended to read:
760 77-27-6. Payment of restitution.
761 (1) When the Board of Pardons and Parole orders the release on parole of an inmate who
762 has been sentenced to make restitution pursuant to [
763 Victims Restitution Act, or whom the board has ordered to make restitution, and all or a portion
764 of restitution is still owing, the board may establish a schedule, including both complete and
765 court-ordered restitution, by which payment of the restitution shall be made, or order compensatory
766 or other service in lieu of or in combination with restitution. In fixing the schedule and supervising
767 the paroled offender's performance, the board may consider the factors specified in [
769 (2) The board may impose any court order for restitution and order that a defendant make
770 restitution in an amount not to exceed the pecuniary damages to the victim of the offense of which
771 the defendant has been convicted, the victim of any other criminal conduct admitted to by the
772 defendant to the sentencing court, or for conduct for which the defendant has agreed to make
773 restitution as part of a plea agreement, unless the board applying the criteria as set forth in
775 (3) The board may also make orders of restitution for recovery of any or all costs incurred
776 by the Department of Corrections or the state or any other agency arising out of the defendant's
777 needs or conduct.
778 (4) If the defendant, upon termination of the parole period owes outstanding fines,
779 restitution, or other assessed costs, the matter shall be referred to the district court for civil
780 collection remedies. The Board of Pardons and Parole shall forward a restitution order to the
781 sentencing court to be entered on the judgment docket. The entry shall constitute a lien and is
782 subject to the same rules as a judgment for money in a civil judgment.
782a h Section 11. Section 77-32a-1 is amended to read:
782b 77-32a-1. Costs _ Convicted defendant may be required to pay.
782c In a criminal action the court may require a convicted defendant to [
783 Section h [
784 77-37-3. Bill of Rights.
785 (1) The bill of rights for victims and witnesses is:
786 (a) Victims and witnesses have a right to be informed as to the level of protection from
787 intimidation and harm available to them, and from what sources, as they participate in criminal
788 justice proceedings as designated by Section 76-8-508 , regarding witness tampering, and Section
789 76-8-509 , regarding threats against a victim. Law enforcement, prosecution, and corrections
790 personnel have the duty to timely provide this information in a form that is useful to the victim.
791 (b) Victims and witnesses, including children and their guardians, have a right to be
792 informed and assisted as to their role in the criminal justice process. All criminal justice agencies
793 have the duty to provide this information and assistance.
794 (c) Victims and witnesses have a right to clear explanations regarding relevant legal
795 proceedings; these explanations shall be appropriate to the age of child victims and witnesses. All
796 criminal justice agencies have the duty to provide these explanations.
797 (d) Victims and witnesses should have a secure waiting area that does not require them to
798 be in close proximity to defendants or the family and friends of defendants. Agencies controlling
799 facilities shall, whenever possible, provide this area.
800 (e) Victims are entitled to restitution or reparations, including medical costs, as provided
801 in Title 63, Chapter 25a, Criminal Justice and Substance Abuse, and Sections 62A-7-122 ,
803 the duty to have a functional knowledge of the procedures established by the Utah Crime Victims'
804 Reparations Board and to inform victims of these procedures.
805 (f) Victims and witnesses have a right to have any personal property returned as provided
806 in Sections 77-24-1 through 77-24-5 . Criminal justice agencies shall expeditiously return the
807 property when it is no longer needed for court law enforcement or prosecution purposes.
808 (g) Victims and witnesses have the right to reasonable employer intercession services,
809 including pursuing employer cooperation in minimizing employees' loss of pay and other benefits
810 resulting from their participation in the criminal justice process. Officers of the court shall provide
811 these services and shall consider victims' and witnesses' schedules so that activities which conflict
812 can be avoided. Where conflicts cannot be avoided, the victim may request that the responsible
813 agency intercede with employers or other parties.
814 (h) Victims and witnesses, particularly children, should have a speedy disposition of the
815 entire criminal justice process. All involved public agencies shall establish policies and procedures
816 to encourage speedy disposition of criminal cases.
817 (i) Victims and witnesses have the right to timely notice of judicial proceedings they are
818 to attend and timely notice of cancellation of any proceedings. Criminal justice agencies have the
819 duty to provide these notifications. Defense counsel and others have the duty to provide timely
820 notice to prosecution of any continuances or other changes that may be required.
821 (j) Victims of sexual offenses have a right to be informed of their right to request voluntary
822 testing for themselves for HIV infection as provided in Section 76-5-503 and to request mandatory
823 testing of the convicted sexual offender for HIV infection as provided in Section 76-5-502 . The
824 law enforcement office where the sexual offense is reported shall have the responsibility to inform
825 victims of this right.
826 (2) Informational rights of the victim under this chapter are based upon the victim
827 providing his current address and telephone number to the criminal justice agencies involved in
828 the case.
829 Section 12. Section 77-38a-302 is amended to read:
830 77-38a-302. Restitution criteria.
831 (1) When a defendant is convicted of criminal activity that has resulted in pecuniary
832 damages, in addition to any other sentence it may impose, the court shall order that the defendant
833 make restitution to victims of crime as provided in this [
834 which the defendant has agreed to make restitution as part of a plea disposition. For purposes of
835 restitution, a victim has the meaning as defined in Subsection 77-38a-102 [
836 determining whether restitution is appropriate, the court shall follow the criteria and procedures
837 as provided in Subsections (2) through (5).
838 (2) In determining restitution, the court shall determine complete restitution and
839 court-ordered restitution.
840 (a) "Complete restitution" means restitution necessary to compensate a victim for all losses
841 caused by the defendant.
842 (b) "Court-ordered restitution" means the restitution the court having criminal jurisdiction
843 orders the defendant to pay as a part of the criminal sentence at the time of sentencing.
844 (c) Complete restitution and court-ordered restitution shall be determined as provided in
845 Subsection (5).
846 (3) If the court determines that restitution is appropriate or inappropriate under this part,
847 the court shall make the reasons for the decision part of the court record.
848 (4) If the defendant objects to the imposition, amount, or distribution of the restitution, the
849 court shall at the time of sentencing allow the defendant a full hearing on the issue.
850 (5) (a) For the purpose of determining restitution for an offense, the offense shall include
851 any criminal conduct admitted by the defendant to the sentencing court or to which the defendant
852 agrees to pay restitution. A victim of an offense that involves as an element a scheme, a
853 conspiracy, or a pattern of criminal activity, includes any person directly harmed by the defendant's
854 criminal conduct in the course of the scheme, conspiracy, or pattern.
855 (b) In determining the monetary sum and other conditions for complete restitution, the
856 court shall consider all relevant facts, including:
857 (i) the cost of the damage or loss if the offense resulted in damage to or loss or destruction
858 of property of a victim of the offense;
859 (ii) the cost of necessary medical and related professional services and devices relating to
860 physical or mental health care, including nonmedical care and treatment rendered in accordance
861 with a method of healing recognized by the law of the place of treatment;
862 (iii) the cost of necessary physical and occupational therapy and rehabilitation;
863 (iv) the income lost by the victim as a result of the offense if the offense resulted in bodily
864 injury to a victim; and
865 (v) the cost of necessary funeral and related services if the offense resulted in the death of
866 a victim.
867 (c) In determining the monetary sum and other conditions for court-ordered restitution, the
868 court shall consider the factors listed in Subsections (5)(a) and (b) and:
869 (i) the financial resources of the defendant and the burden that payment of restitution will
870 impose, with regard to the other obligations of the defendant;
871 (ii) the ability of the defendant to pay restitution on an installment basis or on other
872 conditions to be fixed by the court;
873 (iii) the rehabilitative effect on the defendant of the payment of restitution and the method
874 of payment; and
875 (iv) other circumstances which the court determines may make restitution inappropriate.
876 (d) The court may decline to make an order or may defer entering an order of restitution
877 if the court determines that the complication and prolongation of the sentencing process, as a result
878 of considering an order of restitution under this subsection, substantially outweighs the need to
879 provide restitution to the victim.
880 Section 13. Section 77-38a-501 is amended to read:
881 77-38a-501. Default and sanctions.
882 When a defendant defaults in the payment of a judgment for restitution or any installment
883 ordered, the court, on motion of the prosecutor, parole or probation agent, victim, or on its own
884 motion may impose sanctions against the defendant as provided in [
885 76-3-201 [
886 Section 14. Repealer.
887 This act repeals:
888 Section 76-3-201.2, Civil action by victim for damages.
889 Section 77-32a-1, Restitution and costs -- Convicted defendant may be required to
Legislative Review Note
as of 12-17-01 10:48 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.