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H.B. 190

             1     

CRIMINAL RESTITUTION AMENDMENTS

             2     
2002 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Sheryl L. Allen

             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:
             8      AMENDS:
             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             16          77-18-6, as repealed and reenacted by Chapter 279, Laws of Utah 1999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
             22      REPEALS:
             23          76-3-201.2, as last amended by Chapter 163, Laws of Utah 1990
             24          h [ 77-32a-1, as enacted by Chapter 15, Laws of Utah 1980 ] 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 [Section 76-3-201 ] Title 77, Chapter 38a, Crime
             34      Victims Restitution Act, obtained through due process of law by any entity of state government;
             35      or
             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
             67      treasury.
             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
             91      credit:
             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
             151      Code.


             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 [Section
             161      76-3-201 ] Title 77, Chapter 38a, Crime Victims Restitution Act, or as established by any other
             162      provisions.
             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 [ 76-3-201 ] 77-38a-401 and identify the Reparations
             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 [ 76-3-201.2 ]
             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
             221      aggregate.
             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
             236      expenses.
             237          (d) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
             238      victim, [including the accrual of interest from the time of sentencing, insured damages,] and
             239      payment for expenses to a governmental entity for extradition or transportation and as further
             240      defined in [Subsection (4)(c)] Title 77, Chapter 38a, Crime Victims Restitution Act.
             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) [(i)] When a person is convicted of criminal activity that has resulted in pecuniary
             261      damages, in addition to any other sentence it may impose, the court shall order that the defendant
             262      make restitution to the victims [of crime as provided in this subsection], or for conduct for which
             263      the defendant has agreed to make restitution as part of a plea agreement. [For purposes of
             264      restitution, a victim has the meaning as defined in Subsection (1)(e).]
             265          [(ii)] (b) In determining whether restitution is appropriate, the court shall follow the
             266      criteria and procedures as provided in [Subsections (4)(c) and (4)(d)] Title 77, Chapter 38a, Crime
             267      Victims Restitution Act.
             268          [(iii) If the court finds the defendant owes restitution, the clerk of the court shall enter an
             269      order of complete restitution as defined in Subsection (8)(b) on the civil judgment docket and
             270      provide notice of the order to the parties.]
             271          [(iv) The order is considered a legal judgment enforceable under the Utah Rules of Civil
             272      Procedure, and the person in whose favor the restitution order is entered may seek enforcement of
             273      the restitution order in accordance with the Utah Rules of Civil Procedure. In addition, the
             274      Department of Corrections may, on behalf of the person in whose favor the restitution order is
             275      entered, enforce the restitution order as judgment creditor under the Utah Rules of Civil


             276      Procedure.]
             277          [(v) If the defendant fails to obey a court order for payment of restitution and the victim
             278      or department elects to pursue collection of the order by civil process, the victim shall be entitled
             279      to recover reasonable attorney's fees.]
             280          [(vi) A judgment ordering restitution constitutes a lien when recorded in a judgment docket
             281      and shall have the same effect and is subject to the same rules as a judgment for money in a civil
             282      action. Interest shall accrue on the amount ordered from the time of sentencing.]
             283          [(vii) The Department of Corrections shall make rules permitting the restitution payments
             284      to be credited to principal first and the remainder of payments credited to interest in accordance
             285      with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.]
             286          [(b) (i) If a defendant has been extradited to this state under Title 77, Chapter 30,
             287      Extradition, to resolve pending criminal charges and is convicted of criminal activity in the county
             288      to which he has been returned, the court may, in addition to any other sentence it may impose,
             289      order that the defendant make restitution for costs expended by any governmental entity for the
             290      extradition.]
             291          [(ii) In determining whether restitution is appropriate, the court shall consider the criteria
             292      in Subsection (4)(c).]
             293          [(c) In determining restitution, the court shall determine complete restitution and
             294      court-ordered restitution.]
             295          [(i) Complete restitution means the restitution necessary to compensate a victim for all
             296      losses caused by the defendant.]
             297          [(ii) Court-ordered restitution means the restitution the court having criminal jurisdiction
             298      orders the defendant to pay as a part of the criminal sentence at the time of sentencing.]
             299          [(iii) Complete restitution and court-ordered restitution shall be determined as provided
             300      in Subsection (8).]
             301          [(d) (i) If the court determines that restitution is appropriate or inappropriate under this
             302      subsection, the court shall make the reasons for the decision a part of the court record.]
             303          [(ii) In any civil action brought by a victim to enforce the judgment, the defendant shall
             304      be entitled to offset any amounts that have been paid as part of court-ordered restitution to the
             305      victim.]
             306          [(iii) A judgment ordering restitution constitutes a lien when recorded in a judgment


             307      docket and shall have the same effect and is subject to the same rules as a judgment for money in
             308      a civil action. Interest shall accrue on the amount ordered from the time of sentencing.]
             309          [(iv) The Department of Corrections shall make rules permitting the restitution payments
             310      to be credited to principal first and the remainder of payments credited to interest in accordance
             311      with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.]
             312          [(e) If the defendant objects to the imposition, amount, or distribution of the restitution,
             313      the court shall at the time of sentencing allow the defendant a full hearing on the issue.]
             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.
             358          [(8) (a) For the purpose of determining restitution for an offense, the offense shall include
             359      any criminal conduct admitted by the defendant to the sentencing court or to which the defendant
             360      agrees to pay restitution. A victim of an offense, that involves as an element a scheme, a
             361      conspiracy, or a pattern of criminal activity, includes any person directly harmed by the defendant's
             362      criminal conduct in the course of the scheme, conspiracy, or pattern.]
             363          [(b) In determining the monetary sum and other conditions for complete restitution, the
             364      court shall consider all relevant facts, including:]
             365          [(i) the cost of the damage or loss if the offense resulted in damage to or loss or destruction
             366      of property of a victim of the offense;]
             367          [(ii) the cost of necessary medical and related professional services and devices relating
             368      to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered


             369      in accordance with a method of healing recognized by the law of the place of treatment; the cost
             370      of necessary physical and occupational therapy and rehabilitation; and the income lost by the
             371      victim as a result of the offense if the offense resulted in bodily injury to a victim; and]
             372          [(iii) the cost of necessary funeral and related services if the offense resulted in the death
             373      of a victim.]
             374          [(c) In determining the monetary sum and other conditions for court-ordered restitution,
             375      the court shall consider the factors listed in Subsection (8)(b) and:]
             376          [(i) the financial resources of the defendant and the burden that payment of restitution will
             377      impose, with regard to the other obligations of the defendant;]
             378          [(ii) the ability of the defendant to pay restitution on an installment basis or on other
             379      conditions to be fixed by the court;]
             380          [(iii) the rehabilitative effect on the defendant of the payment of restitution and the method
             381      of payment; and]
             382          [(iv) other circumstances which the court determines make restitution inappropriate.]
             383          [(d) The court may decline to make an order or may defer entering an order of restitution
             384      if the court determines that the complication and prolongation of the sentencing process, as a result
             385      of considering an order of restitution under this subsection, substantially outweighs the need to
             386      provide restitution to the victim.]
             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
             409      offense;
             410          (b) order the defendant to pay all or a portion of the costs of administration of the
             411      agreement;
             412          (c) order the defendant to pay restitution to the victims of his actions as provided in
             413      [Section 76-3-201 ] Title 77, Chapter 38a, Crime Victims Restitution Act;
             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
             426      transportation.
             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 [6:00] 6 a.m. to [10:00] 10 p.m.; and
             438          (b) nighttime hours are the hours after [10:00] 10 p.m. and before [6:00] 6 a.m.
             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 [Section] Subsection
             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
             455      defendant.
             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
             496      standards.
             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. [The victim impact statement shall:]
             504          [(i) identify all victims of the offense;]
             505          [(ii) include a specific statement of the recommended amount of complete restitution as
             506      defined in Subsection 76-3-201 (4), accompanied by a recommendation from the department
             507      regarding the payment of court-ordered restitution as defined in Subsection 76-3-201 (4) by the
             508      defendant;]
             509          [(iii) identify any physical injury suffered by the victim as a result of the offense along with
             510      its seriousness and permanence;]
             511          [(iv) describe any change in the victim's personal welfare or familial relationships as a
             512      result of the offense;]
             513          [(v) identify any request for psychological services initiated by the victim or the victim's
             514      family as a result of the offense; and]
             515          [(vi) contain any other information related to the impact of the offense upon the victim or
             516      the victim's family and any information required by Section 77-38a-203 that is relevant to the trial
             517      court's sentencing determination.]
             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 [Subsection 76-3-201 (4)] Title 77,
             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
             541      defendant:
             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
             551      monitoring;
             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
             556      [Subsection 76-3-201 (4)] Title 77, Chapter 38a, Crime Victims Restitution Act; and
             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;
             562      or
             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
             626      evidence.
             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
             630      anew.
             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
             675      Corrections;
             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 [under Section 76-3-201 ] in the registry of civil judgments, listing the
             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
             717      terminated.
             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 [ 76-3-201 ] 77-38a-302 .
             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 [ 76-3-201 ] 77-38a-302 , as a condition of any parole, pardon, remission of fines or
             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 [Section 76-3-201 ] Title 77, Chapter 38a, Crime
             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 [Subsection
             768      76-3-201 (4)] Section 77-38a-302 .
             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
             774      [Subsection 76-3-201 (4)] Section 77-38a-302 determines that restitution is inappropriate.
             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 [ make
             782d      restitution and ] pay costs. h
             783          Section h [ 11 ] 12 h . Section 77-37-3 is amended to read:
             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 ,
             802      [ 76-3-201 ] 77-38a-302 , and 77-27-6 . State and local government agencies that serve victims have


             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 [subsection] chapter, or for conduct for


             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 [(12)](13) and in
             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 [Subsection] Section
             885      76-3-201 [(1)].
             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
             890      pay.





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.

Office of Legislative Research and General Counsel


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