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H.B. 190 Enrolled
This act modifies provisions dealing with criminal restitution by repealing provisions that
were duplicated with the enactment of the Crime Victims Restitution Act in 2001.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
59-10-529, as last amended by Chapters 86 and 161, Laws of Utah 2000
63-25a-403, as last amended by Chapter 235, Laws of Utah 2000
63-25a-411, as last amended by Chapter 235, Laws of Utah 2000
76-3-201, as last amended by Chapter 209, Laws of Utah 2001
77-2a-3, as last amended by Chapter 301, Laws of Utah 1995
77-7-5, as last amended by Chapter 126, Laws of Utah 1999
77-18-1, as last amended by Chapter 137, Laws of Utah 2001
77-18-6, as repealed and reenacted by Chapter 279, Laws of Utah 1999
77-27-5, as last amended by Chapter 100, Laws of Utah 1996
77-27-6, as last amended by Chapter 94, Laws of Utah 1998
77-32a-1, as enacted by Chapter 15, Laws of Utah 1980
77-37-3, as last amended by Chapter 1, Laws of Utah 2000
77-38a-302, as enacted by Chapter 137, Laws of Utah 2001
77-38a-501, as enacted by Chapter 137, Laws of Utah 2001
REPEALS:
76-3-201.2, as last amended by Chapter 163, Laws of Utah 1990
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 59-10-529 is amended to read:
59-10-529. Overpayment of tax -- Credits -- Refunds.
(1) In cases where there has been an overpayment of any tax imposed by this chapter, the
amount of overpayment is credited as follows:
(a) against any income tax then due from the taxpayer;
(b) against:
(i) the amount of any judgment against the taxpayer, including one ordering the payment of
a fine or of restitution to a victim under [
Restitution Act, obtained through due process of law by any entity of state government; or
(ii) any child support obligation which is due or past due, as determined by the Office of
Recovery Services in the Department of Human Services and after notice and an opportunity for an
adjudicative proceeding, as provided in Subsection (2); or
(c) as bail, to ensure the appearance of the taxpayer before the appropriate authority to
resolve an outstanding warrant against the taxpayer for which bail is due, if a court of competent
jurisdiction has not approved an alternative form of payment. This bail may be applied to any fine
or forfeiture which is due and related to a warrant which is outstanding on or after February 16,
1984, and in accordance with Subsections (3) and (4).
(2) (a) Subsection (1)(b)(ii) may be exercised only if the Office of Recovery Services has
sent written notice to the taxpayer's last-known address or the address on file under Section
62A-11-304.4 , stating:
(i) the amount of child support that is due or past due as of the date of the notice or other
specified date;
(ii) that any overpayment shall be applied to reduce the amount of due or past-due child
support specified in the notice; and
(iii) that the taxpayer may contest the amount of past-due child support specified in the
notice by filing a written request for an adjudicative proceeding with the office within 15 days of the
notice being sent.
(b) The Office of Recovery Services shall establish rules to implement this Subsection (2),
including procedures, in accordance with the other provisions of this section, to ensure prompt
reimbursement to the taxpayer of any amount of an overpayment of taxes which was credited against
a child support obligation in error, and to ensure prompt distribution of properly credited funds to
the obligee parent.
(3) Subsection (1)(c) may be exercised only if:
(a) a court has issued a warrant for the arrest of the taxpayer for failure to post bail, appear,
or otherwise satisfy the terms of a citation, summons, or court order; and
(b) a notice of intent to apply the overpayment as bail on the issued warrant has been sent
to the person's current address on file with the commission.
(4) (a) The commission shall deliver the overpayment applied as bail to the court that issued
the warrant of arrest. The clerk of the court is authorized to endorse the check or commission
warrant of payment on behalf of the payees and deposit the monies in the court treasury.
(b) The court receiving the overpayment applied as bail shall order withdrawal of the warrant
for arrest of the taxpayer if the case is one for which a personal appearance of the taxpayer is not
required and if the dollar amount of the overpayment represents the full dollar amount of bail. In
all other cases, the court receiving the overpayment applied as bail is not required to order the
withdrawal of the warrant of arrest of the taxpayer during the 40-day period, and the taxpayer may
be arrested on the warrant. However, the bail amount shall be reduced by the amount of tax
overpayment received by the court.
(c) If the taxpayer fails to respond to the notice described in Subsection (3), or to resolve the
warrant within 40 days after the notice was sent under that subsection, the overpayment applied as
bail is forfeited and notice of the forfeiture shall be mailed to the taxpayer at the current address on
file with the commission. The court may then issue another warrant or allow the original warrant
to remain in force if:
(i) the taxpayer has not complied with an order of the court;
(ii) the taxpayer has failed to appear and respond to a criminal charge for which a personal
appearance is required; or
(iii) the taxpayer has paid partial but not full bail in a case for which a personal appearance
is not required.
(5) If the alleged violations named in the warrant are later resolved in favor of the taxpayer,
the bail amount shall be remitted to the taxpayer.
(6) Any balance shall be refunded immediately to the taxpayer.
(7) (a) If a refund or credit is due because the amount of tax deducted and withheld from
wages exceeds the actual tax due, a refund or credit may not be made or allowed unless the taxpayer
or his legal representative files with the commission a tax return claiming the refund or credit:
(i) within three years from the due date of the return, plus the period of any extension of time
for filing the return provided for in Subsection (7)(c); or
(ii) within two years from the date the tax was paid, whichever period is later.
(b) Except as provided in Subsection (7)(d), in other instances where a refund or credit of tax
which has not been deducted and withheld from income is due, a credit or refund may not be allowed
or made after three years from the time the tax was paid, unless, before the expiration of the period,
a claim is filed by the taxpayer or his legal representative.
(c) Beginning on July 1, 1998, the commission shall extend the period for a taxpayer to file
a claim under Subsection (7)(a)(i) if:
(i) the time period for filing a claim under Subsection (7)(a) has not expired; and
(ii) the commission and the taxpayer sign a written agreement:
(A) authorizing the extension; and
(B) providing for the length of the extension.
(d) Notwithstanding Subsection (7)(b), beginning on July 1, 1998, the commission shall
extend the period for a taxpayer to file a claim under Subsection (7)(b) if:
(i) the three-year period under Subsection (7)(b) has not expired; and
(ii) the commission and the taxpayer sign a written agreement:
(A) authorizing the extension; and
(B) providing for the length of the extension.
(8) The fine and bail forfeiture provisions of this section apply to all warrants and fines
issued in cases charging the taxpayer with a felony, a misdemeanor, or an infraction described in this
section which are outstanding on or after February 16, 1984.
(9) If the amount allowable as a credit for tax withheld from the taxpayer exceeds the tax
to which the credit relates, the excess is considered an overpayment.
(10) A claim for credit or refund of an overpayment which is attributable to the application
to the taxpayer of a net operating loss carryback shall be filed within three years from the time the
return was due for the taxable year of the loss.
(11) If there has been an overpayment of the tax which is required to be deducted and
withheld under Section 59-10-402 , a refund shall be made to the employer only to the extent that the
amount of overpayment was not deducted and withheld by the employer.
(12) If there is no tax liability for a period in which an amount is paid as income tax, the
amount is an overpayment.
(13) If an income tax is assessed or collected after the expiration of the applicable period of
limitation, that amount is an overpayment.
(14) (a) If a taxpayer is required to report a change or correction in federal taxable income
reported on his federal income tax return, or to report a change or correction which is treated in the
same manner as if it were an overpayment for federal income tax purposes, or to file an amended
return with the commission, a claim for credit or refund of any resulting overpayment of tax shall
be filed by the taxpayer within two years from the date the notice of the change, correction, or
amended return was required to be filed with the commission.
(b) If the report or amended return is not filed within 90 days, interest on any resulting
refund or credit ceases to accrue after the 90-day period.
(c) The amount of the credit or refund may not exceed the amount of the reduction in tax
attributable to the federal change, correction, or items amended on the taxpayer's amended federal
income tax return.
(d) Except as specifically provided, this section does not affect the amount or the time within
which a claim for credit or refund may be filed.
(15) No credit or refund may be allowed or made if the overpayment is less than $1.
(16) The amount of the credit or refund may not exceed the tax paid during the three years
immediately preceding the filing of the claim, or if no claim is filed, then during the three years
immediately preceding the allowance of the credit or refund.
(17) In the case of an overpayment of tax by the employer under the withholding provisions
of this chapter, a refund or credit shall be made to the employer only to the extent that the amount
of the overpayment was not deducted and withheld from wages under the provisions of this chapter.
(18) If a taxpayer who is entitled to a refund under this chapter dies, the commission may
make payment to the duly appointed executor or administrator of the taxpayer's estate. If there is no
executor or administrator, payment may be made to those persons who establish entitlement to
inherit the property of the decedent in the proportions set out in Title 75, Utah Uniform Probate
Code.
(19) Where an overpayment relates to adjustments to net income referred to in Subsection
59-10-536 (3)(c), credit may be allowed or a refund paid any time before the expiration of the period
within which a deficiency may be assessed.
(20) An overpayment of a tax imposed by this chapter shall accrue interest at the rate and
in the manner prescribed in Section 59-1-402 .
Section 2. Section 63-25a-403 is amended to read:
63-25a-403. Restitution -- Reparations not to supplant restitution -- Assignment of
claim for restitution judgment to Reparations Office.
(1) A reparations award shall not supplant restitution as established under [
Title 77, Chapter 38a, Crime Victims Restitution Act, or as established by any other provisions.
(2) The court shall not consider a reparations award when determining the order of
restitution nor when enforcing restitution.
(3) If, due to reparation payments to a victim, the Reparations Office is assigned under
Section 63-25a-419 a claim for the victim's judgment for restitution or a portion of the restitution,
the Reparations Office may file with the sentencing court a notice of the assignment. The notice of
assignment shall be signed by the victim and a Reparations Officer and shall state the amount of the
claim assigned.
(4) Upon conviction and sentencing of the defendant, the court shall enter a civil judgment
for complete restitution as provided in Section [
Office as the assignee of the assigned portion of the judgment.
(5) If the notice of assignment is filed after sentencing, the court shall modify the civil
judgment for restitution to identify the Reparations Office as the assignee of the assigned portion of
the judgment.
Section 3. Section 63-25a-411 is amended to read:
63-25a-411. Compensable losses and amounts.
A reparations award under this chapter may be made if:
(1) the reparations officer finds the claim satisfies the requirements for the award under the
provisions of this chapter and the rules of the board;
(2) funds are available in the trust fund;
(3) the person for whom the award of reparations is to be paid is otherwise eligible under
this act;
(4) the claim is for an allowable expense incurred by the victim, as follows:
(a) reasonable and necessary charges incurred for products, services, and accommodations;
(b) inpatient and outpatient medical treatment and physical therapy, subject to rules
promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act;
(c) mental health counseling which:
(i) is set forth in a mental health treatment plan which has been approved prior to any
payment by a reparations officer; and
(ii) qualifies within any further rules promulgated by the board pursuant to Title 63, Chapter
46a, Utah Administrative Rulemaking Act;
(d) actual loss of past earnings and anticipated loss of future earnings because of a death or
disability resulting from the personal injury at a rate not to exceed 66-2/3% of the person's weekly
gross salary or wages or the maximum amount allowed under the state workers' compensation
statute;
(e) care of minor children enabling a victim or spouse of a victim, but not both of them, to
continue gainful employment at a rate per child per week as determined under rules established by
the board;
(f) funeral and burial expenses for death caused by the criminally injurious conduct, subject
to rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
Rulemaking Act;
(g) loss of support to the dependent or dependents not otherwise compensated for a
pecuniary loss for personal injury, for as long as the dependence would have existed had the victim
survived, at a rate not to exceed 66-2/3% of the person's weekly salary or wages or the maximum
amount allowed under the state workers' compensation statute, whichever is less;
(h) personal property necessary and essential to the health or safety of the victim as defined
by rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative
Rulemaking Act; and
(i) medical examinations as defined in Subsection 63-25a-402 (19), subject to rules
promulgated by the board pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
which may allow for exemptions from Sections 63-25a-409 , 63-25a-412 , and 63-25a-413 .
(5) If a Utah resident suffers injury or death as a result of criminally injurious conduct
inflicted in a state, territory, or country that does not provide a reciprocal crime victims'
compensation program, the Utah resident has the same rights under this chapter as if the injurious
conduct occurred in this state.
(6) An award of reparations shall not exceed $25,000 in the aggregate unless the victim is
entitled to proceeds in excess of that amount as provided in Subsection [
However, reparations for actual medical expenses incurred as a result of homicide, attempted
homicide, aggravated assault, or DUI offenses, may be awarded up to $50,000 in the aggregate.
Section 4. Section 76-3-201 is amended to read:
76-3-201. Definitions -- Sentences or combination of sentences allowed -- Civil
penalties -- Hearing.
(1) As used in this section:
(a) "Conviction" includes a:
(i) judgment of guilt; and
(ii) plea of guilty.
(b) "Criminal activities" means any offense of which the defendant is convicted or any other
criminal conduct for which the defendant admits responsibility to the sentencing court with or
without an admission of committing the criminal conduct.
(c) "Pecuniary damages" means all special damages, but not general damages, which a
person could recover against the defendant in a civil action arising out of the facts or events
constituting the defendant's criminal activities and includes the money equivalent of property taken,
destroyed, broken, or otherwise harmed, and losses including earnings and medical expenses.
(d) "Restitution" means full, partial, or nominal payment for pecuniary damages to a victim,
[
expenses to a governmental entity for extradition or transportation and as further defined in
[
(e) (i) "Victim" means any person who the court determines has suffered pecuniary damages
as a result of the defendant's criminal activities.
(ii) "Victim" does not include any coparticipant in the defendant's criminal activities.
(2) Within the limits prescribed by this chapter, a court may sentence a person convicted of
an offense to any one of the following sentences or combination of them:
(a) to pay a fine;
(b) to removal or disqualification from public or private office;
(c) to probation unless otherwise specifically provided by law;
(d) to imprisonment;
(e) on or after April 27, 1992, to life in prison without parole; or
(f) to death.
(3) (a) This chapter does not deprive a court of authority conferred by law to:
(i) forfeit property;
(ii) dissolve a corporation;
(iii) suspend or cancel a license;
(iv) permit removal of a person from office;
(v) cite for contempt; or
(vi) impose any other civil penalty.
(b) A civil penalty may be included in a sentence.
(4) (a) [
damages, in addition to any other sentence it may impose, the court shall order that the defendant
make restitution to the victims [
the defendant has agreed to make restitution as part of a plea agreement. [
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and procedures as provided in [
Restitution Act.
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(5) (a) In addition to any other sentence the court may impose, the court shall order the
defendant to pay restitution of governmental transportation expenses if the defendant was:
(i) transported pursuant to court order from one county to another within the state at
governmental expense to resolve pending criminal charges;
(ii) charged with a felony or a class A, B, or C misdemeanor; and
(iii) convicted of a crime.
(b) The court may not order the defendant to pay restitution of governmental transportation
expenses if any of the following apply:
(i) the defendant is charged with an infraction or on a subsequent failure to appear a warrant
is issued for an infraction; or
(ii) the defendant was not transported pursuant to a court order.
(c) (i) Restitution of governmental transportation expenses under Subsection (5)(a)(i) shall
be calculated according to the following schedule:
(A) $75 for up to 100 miles a defendant is transported;
(B) $125 for 100 up to 200 miles a defendant is transported; and
(C) $250 for 200 miles or more a defendant is transported.
(ii) The schedule of restitution under Subsection (5)(c)(i) applies to each defendant
transported regardless of the number of defendants actually transported in a single trip.
(d) If a defendant has been extradited to this state under Title 77, Chapter 30, Extradition,
to resolve pending criminal charges and is convicted of criminal activity in the county to which he
has been returned, the court may, in addition to any other sentence it may impose, order that the
defendant make restitution for costs expended by any governmental entity for the extradition.
(6) (a) If a statute under which the defendant was convicted mandates that one of three stated
minimum terms shall be imposed, the court shall order imposition of the term of middle severity
unless there are circumstances in aggravation or mitigation of the crime.
(b) Prior to or at the time of sentencing, either party may submit a statement identifying
circumstances in aggravation or mitigation or presenting additional facts. If the statement is in
writing, it shall be filed with the court and served on the opposing party at least four days prior to
the time set for sentencing.
(c) In determining whether there are circumstances that justify imposition of the highest or
lowest term, the court may consider the record in the case, the probation officer's report, other
reports, including reports received under Section 76-3-404 , statements in aggravation or mitigation
submitted by the prosecution or the defendant, and any further evidence introduced at the sentencing
hearing.
(d) The court shall set forth on the record the facts supporting and reasons for imposing the
upper or lower term.
(e) In determining a just sentence, the court shall consider sentencing guidelines regarding
aggravating and mitigating circumstances promulgated by the Sentencing Commission.
(7) If during the commission of a crime described as child kidnapping, rape of a child, object
rape of a child, sodomy upon a child, or sexual abuse of a child, the defendant causes substantial
bodily injury to the child, and if the charge is set forth in the information or indictment and admitted
by the defendant, or found true by a judge or jury at trial, the defendant shall be sentenced to the
highest minimum term in state prison. This subsection takes precedence over any conflicting
provision of law.
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Section 5. Section 77-2a-3 is amended to read:
77-2a-3. Manner of entry of plea -- Powers of court.
(1) Acceptance of any plea in anticipation of a plea in abeyance agreement shall be done in
full compliance with the provisions of Rule 11, Utah Rules of Criminal Procedure.
(2) A plea in abeyance agreement may provide that the court may, upon finding that the
defendant has successfully completed the terms of the agreement:
(a) reduce the degree of the offense and enter judgment of conviction and impose sentence
for a lower degree of offense; or
(b) allow withdrawal of defendant's plea and order the dismissal of the case.
(3) Upon finding that a defendant has successfully completed the terms of a plea in abeyance
agreement, the court shall reduce the degree of the offense, dismiss the case only as provided in the
plea in abeyance agreement or as agreed to by all parties. Upon sentencing a defendant for any lesser
offense pursuant to a plea in abeyance agreement, the court may not invoke Section 76-3-402 to
further reduce the degree of the offense.
(4) The court may require the Department of Corrections to assist in the administration of
the plea in abeyance agreement as if the defendant were on probation to the court under Section
77-18-1 .
(5) The court may upon acceptance of a plea in abeyance agreement and pursuant to the
terms of the agreement:
(a) order the defendant to pay a nonrefundable plea in abeyance fee, which shall be allocated
in the same manner as if it had been paid as a fine and shall not exceed in amount the maximum fine
which could have been imposed upon conviction and sentencing for the same offense;
(b) order the defendant to pay all or a portion of the costs of administration of the agreement;
(c) order the defendant to pay restitution to the victims of his actions as provided in [
(d) order the defendant to pay the costs of any rehabilitative program required by the terms
of the agreement; and
(e) order the defendant to comply with any other conditions which could have been imposed
as conditions of probation upon conviction and sentencing for the same offense.
(6) A court may not hold a plea in abeyance without the consent of both the prosecuting
attorney and the defendant. A decision by a prosecuting attorney not to agree to a plea in abeyance
is not subject to judicial review.
(7) No plea may be held in abeyance in any case involving a sexual offense against a victim
who is under the age of 14.
Section 6. Section 77-7-5 is amended to read:
77-7-5. Issuance of warrant -- Time and place arrests may be made -- Contents of
warrant -- Responsibility for transporting prisoners -- Court clerk to dispense restitution for
transportation.
(1) A magistrate may issue a warrant for arrest upon finding probable cause to believe that
the person to be arrested has committed a public offense. If the offense charged is:
(a) a felony, the arrest upon a warrant may be made at any time of the day or night; or
(b) a misdemeanor, the arrest upon a warrant can be made at night only if:
(i) the magistrate has endorsed authorization to do so on the warrant;
(ii) the person to be arrested is upon a public highway, in a public place, or in a place open
to or accessible to the public; or
(iii) the person to be arrested is encountered by a peace officer in the regular course of that
peace officer's investigation of a criminal offense unrelated to the misdemeanor warrant for arrest.
(2) For the purpose of Subsection (1):
(a) daytime hours are the hours of [
(b) nighttime hours are the hours after [
(3) (a) If the magistrate determines that the accused must appear in court, the magistrate shall
include in the arrest warrant the name of the law enforcement agency in the county or municipality
with jurisdiction over the offense charged.
(b) (i) The law enforcement agency identified by the magistrate under Subsection (3)(a) is
responsible for providing inter-county transportation of the defendant, if necessary, from the
arresting law enforcement agency to the court site.
(ii) The law enforcement agency named on the warrant may contract with another law
enforcement agency to have a defendant transported.
(c) (i) The law enforcement agency identified by the magistrate under Subsection (a) as
responsible for transporting the defendant shall provide to the court clerk of the court in which the
defendant is tried, an affidavit stating that the defendant was transported, indicating the law
enforcement agency responsible for the transportation, and stating the number of miles the defendant
was transported.
(ii) The court clerk shall account for restitution paid under [
for governmental transportation expenses and dispense restitution monies collected by the court to
the law enforcement agency responsible for the transportation of a convicted defendant.
Section 7. Section 77-18-1 is amended to read:
77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation -- Supervision
-- Presentence investigation -- Standards -- Confidentiality -- Terms and conditions --
Termination, revocation, modification, or extension -- Hearings -- Electronic monitoring.
(1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea in
abeyance agreement, the court may hold the plea in abeyance as provided in Title 77, Chapter 2a,
Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
(2) (a) On a plea of guilty, guilty and mentally ill, no contest, or conviction of any crime or
offense, the court may suspend the imposition or execution of sentence and place the defendant on
probation. The court may place the defendant:
(i) on probation under the supervision of the Department of Corrections except in cases of
class C misdemeanors or infractions;
(ii) on probation with an agency of local government or with a private organization; or
(iii) on bench probation under the jurisdiction of the sentencing court.
(b) (i) The legal custody of all probationers under the supervision of the department is with
the department.
(ii) The legal custody of all probationers under the jurisdiction of the sentencing court is
vested as ordered by the court.
(iii) The court has continuing jurisdiction over all probationers.
(3) (a) The department shall establish supervision and presentence investigation standards
for all individuals referred to the department. These standards shall be based on:
(i) the type of offense;
(ii) the demand for services;
(iii) the availability of agency resources;
(iv) the public safety; and
(v) other criteria established by the department to determine what level of services shall be
provided.
(b) Proposed supervision and investigation standards shall be submitted to the Judicial
Council and the Board of Pardons and Parole on an annual basis for review and comment prior to
adoption by the department.
(c) The Judicial Council and the department shall establish procedures to implement the
supervision and investigation standards.
(d) The Judicial Council and the department shall annually consider modifications to the
standards based upon criteria in Subsection (3)(a) and other criteria as they consider appropriate.
(e) The Judicial Council and the department shall annually prepare an impact report and
submit it to the appropriate legislative appropriations subcommittee.
(4) Notwithstanding other provisions of law, the department is not required to supervise the
probation of persons convicted of class B or C misdemeanors or infractions or to conduct
presentence investigation reports on class C misdemeanors or infractions. However, the department
may supervise the probation of class B misdemeanants in accordance with department standards.
(5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of the
defendant, continue the date for the imposition of sentence for a reasonable period of time for the
purpose of obtaining a presentence investigation report from the department or information from
other sources about the defendant.
(b) The presentence investigation report shall include a victim impact statement according
to guidelines set in Section 77-38a-203 describing the effect of the crime on the victim and the
victim's family. [
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(c) The presentence investigation report shall include a specific statement of pecuniary
damages, accompanied by a recommendation from the department regarding the payment of
restitution with interest by the defendant in accordance with [
Chapter 38a, Crime Victims Restitution Act.
(d) The contents of the presentence investigation report, including any diagnostic evaluation
report ordered by the court under Section 76-3-404 , are protected and are not available except by
court order for purposes of sentencing as provided by rule of the Judicial Council or for use by the
department.
(6) (a) The department shall provide the presentence investigation report to the defendant's
attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review,
three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation
report, which have not been resolved by the parties and the department prior to sentencing, shall be
brought to the attention of the sentencing judge, and the judge may grant an additional ten working
days to resolve the alleged inaccuracies of the report with the department. If after ten working days
the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy
on the record.
(b) If a party fails to challenge the accuracy of the presentence investigation report at the
time of sentencing, that matter shall be considered to be waived.
(7) At the time of sentence, the court shall receive any testimony, evidence, or information
the defendant or the prosecuting attorney desires to present concerning the appropriate sentence.
This testimony, evidence, or information shall be presented in open court on record and in the
presence of the defendant.
(8) While on probation, and as a condition of probation, the court may require that the
defendant:
(a) perform any or all of the following:
(i) pay, in one or several sums, any fine imposed at the time of being placed on probation;
(ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
(iii) provide for the support of others for whose support he is legally liable;
(iv) participate in available treatment programs;
(v) serve a period of time, not to exceed one year, in a county jail designated by the
department, after considering any recommendation by the court as to which jail the court finds most
appropriate;
(vi) serve a term of home confinement, which may include the use of electronic monitoring;
(vii) participate in compensatory service restitution programs, including the compensatory
service program provided in Section 78-11-20.7 ;
(viii) pay for the costs of investigation, probation, and treatment services;
(ix) make restitution or reparation to the victim or victims with interest in accordance with
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(x) comply with other terms and conditions the court considers appropriate; and
(b) if convicted on or after May 5, 1997:
(i) complete high school classwork and obtain a high school graduation diploma, a GED
certificate, or a vocational certificate at the defendant's own expense if the defendant has not received
the diploma, GED certificate, or vocational certificate prior to being placed on probation; or
(ii) provide documentation of the inability to obtain one of the items listed in Subsection
(8)(b)(i) because of:
(A) a diagnosed learning disability; or
(B) other justified cause.
(9) The department shall collect and disburse the account receivable as defined by Section
76-3-201.1 , with interest and any other costs assessed under Section 64-13-21 during:
(a) the parole period and any extension of that period in accordance with Subsection
77-27-6 (4); and
(b) the probation period in cases for which the court orders supervised probation and any
extension of that period by the department in accordance with Subsection 77-18-1 (10).
(10) (a) (i) Probation may be terminated at any time at the discretion of the court or upon
completion without violation of 36 months probation in felony or class A misdemeanor cases, or 12
months in cases of class B or C misdemeanors or infractions.
(ii) (A) If, upon expiration or termination of the probation period under Subsection
(10)(a)(i), there remains an unpaid balance upon the account receivable as defined in Section
76-3-201.1 , the court may retain jurisdiction of the case and continue the defendant on bench
probation for the limited purpose of enforcing the payment of the account receivable.
(B) In accordance with Section 77-18-6 , the court shall record in the registry of civil
judgments any unpaid balance not already recorded and immediately transfer responsibility to collect
the account to the Office of State Debt Collection.
(iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its own
motion, the court may require the defendant to show cause why his failure to pay should not be
treated as contempt of court.
(b) (i) The department shall notify the sentencing court, the Office of State Debt Collection,
and the prosecuting attorney in writing in advance in all cases when termination of supervised
probation will occur by law.
(ii) The notification shall include a probation progress report and complete report of details
on outstanding accounts receivable.
(11) (a) (i) Any time served by a probationer outside of confinement after having been
charged with a probation violation and prior to a hearing to revoke probation does not constitute
service of time toward the total probation term unless the probationer is exonerated at a hearing to
revoke the probation.
(ii) Any time served in confinement awaiting a hearing or decision concerning revocation
of probation does not constitute service of time toward the total probation term unless the
probationer is exonerated at the hearing.
(b) The running of the probation period is tolled upon the filing of a violation report with
the court alleging a violation of the terms and conditions of probation or upon the issuance of an
order to show cause or warrant by the court.
(12) (a) (i) Probation may not be modified or extended except upon waiver of a hearing by
the probationer or upon a hearing and a finding in court that the probationer has violated the
conditions of probation.
(ii) Probation may not be revoked except upon a hearing in court and a finding that the
conditions of probation have been violated.
(b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to constitute
violation of the conditions of probation, the court that authorized probation shall determine if the
affidavit establishes probable cause to believe that revocation, modification, or extension of
probation is justified.
(ii) If the court determines there is probable cause, it shall cause to be served on the
defendant a warrant for his arrest or a copy of the affidavit and an order to show cause why his
probation should not be revoked, modified, or extended.
(c) (i) The order to show cause shall specify a time and place for the hearing and shall be
served upon the defendant at least five days prior to the hearing.
(ii) The defendant shall show good cause for a continuance.
(iii) The order to show cause shall inform the defendant of a right to be represented by
counsel at the hearing and to have counsel appointed for him if he is indigent.
(iv) The order shall also inform the defendant of a right to present evidence.
(d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
(ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney shall
present evidence on the allegations.
(iii) The persons who have given adverse information on which the allegations are based
shall be presented as witnesses subject to questioning by the defendant unless the court for good
cause otherwise orders.
(iv) The defendant may call witnesses, appear and speak in his own behalf, and present
evidence.
(e) (i) After the hearing the court shall make findings of fact.
(ii) Upon a finding that the defendant violated the conditions of probation, the court may
order the probation revoked, modified, continued, or that the entire probation term commence anew.
(iii) If probation is revoked, the defendant shall be sentenced or the sentence previously
imposed shall be executed.
(13) The court may order the defendant to commit himself to the custody of the Division of
Mental Health for treatment at the Utah State Hospital as a condition of probation or stay of
sentence, only after the superintendent of the Utah State Hospital or his designee has certified to the
court that:
(a) the defendant is appropriate for and can benefit from treatment at the state hospital;
(b) treatment space at the hospital is available for the defendant; and
(c) persons described in Subsection 62A-12-209 (2)(g) are receiving priority for treatment
over the defendants described in this Subsection (13).
(14) Presentence investigation reports, including presentence diagnostic evaluations, are
classified protected in accordance with Title 63, Chapter 2, Government Records Access and
Management Act. Notwithstanding Sections 63-2-403 and 63-2-404 , the State Records Committee
may not order the disclosure of a presentence investigation report. Except for disclosure at the time
of sentencing pursuant to this section, the department may disclose the presentence investigation
only when:
(a) ordered by the court pursuant to Subsection 63-2-202 (7);
(b) requested by a law enforcement agency or other agency approved by the department for
purposes of supervision, confinement, and treatment of the offender;
(c) requested by the Board of Pardons and Parole;
(d) requested by the subject of the presentence investigation report or the subject's authorized
representative; or
(e) requested by the victim of the crime discussed in the presentence investigation report or
the victim's authorized representative, provided that the disclosure to the victim shall include only
information relating to statements or materials provided by the victim, to the circumstances of the
crime including statements by the defendant, or to the impact of the crime on the victim or the
victim's household.
(15) (a) The court shall consider home confinement as a condition of probation under the
supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5 .
(b) The department shall establish procedures and standards for home confinement,
including electronic monitoring, for all individuals referred to the department in accordance with
Subsection (16).
(16) (a) If the court places the defendant on probation under this section, it may order the
defendant to participate in home confinement through the use of electronic monitoring as described
in this section until further order of the court.
(b) The electronic monitoring shall alert the department and the appropriate law enforcement
unit of the defendant's whereabouts.
(c) The electronic monitoring device shall be used under conditions which require:
(i) the defendant to wear an electronic monitoring device at all times; and
(ii) that a device be placed in the home of the defendant, so that the defendant's compliance
with the court's order may be monitored.
(d) If a court orders a defendant to participate in home confinement through electronic
monitoring as a condition of probation under this section, it shall:
(i) place the defendant on probation under the supervision of the Department of Corrections;
(ii) order the department to place an electronic monitoring device on the defendant and
install electronic monitoring equipment in the residence of the defendant; and
(iii) order the defendant to pay the costs associated with home confinement to the department
or the program provider.
(e) The department shall pay the costs of home confinement through electronic monitoring
only for those persons who have been determined to be indigent by the court.
(f) The department may provide the electronic monitoring described in this section either
directly or by contract with a private provider.
Section 8. Section 77-18-6 is amended to read:
77-18-6. Judgment to pay fine or restitution constitutes a lien.
(1) (a) In cases not supervised by the Department of Corrections, the clerk of the district
court shall:
(i) transfer the responsibility to collect past due accounts receivable to the Office of State
Debt Collection when the accounts receivable are 90 days or more past due; and
(ii) before transferring the responsibility to collect the past due account receivable to the
Office of State Debt Collection, record each judgment of conviction of a crime that orders the
payment of a fine, forfeiture, surcharge, cost permitted by statute, or fee in the registry of civil
judgments, listing the Office of State Debt Collection as the judgment creditor.
(b) (i) The clerk of court shall record each judgment of conviction that orders the payment
of restitution to a victim [
victim, or the estate of the victim, as the judgment creditor.
(ii) The Department of Corrections shall collect the judgment on behalf of the victim as
provided in Subsection 77-18-1 (9).
(iii) The court shall collect the judgment on behalf of the victim as provided in Subsection
78-7-33 (2).
(iv) The victim may collect the judgment.
(v) The victim is responsible for timely renewal of the judgment under Section 78-22-1 .
(2) When a fine, forfeiture, surcharge, cost, fee, or restitution is recorded in the registry of
civil judgments, the judgment:
(a) constitutes a lien;
(b) has the same effect and is subject to the same rules as a judgment for money in a civil
action; and
(c) may be collected by any means authorized by law for the collection of a civil judgment.
Section 9. Section 77-27-5 is amended to read:
77-27-5. Board of Pardons and Parole authority.
(1) (a) The Board of Pardons and Parole shall determine by majority decision when and
under what conditions, subject to this chapter and other laws of the state, persons committed to serve
sentences in class A misdemeanor cases at penal or correctional facilities which are under the
jurisdiction of the Department of Corrections, and all felony cases except treason or impeachment
or as otherwise limited by law, may be released upon parole, pardoned, restitution ordered, or have
their fines, forfeitures, or restitution remitted, or their sentences commuted or terminated.
(b) The board may sit together or in panels to conduct hearings. The chair shall appoint
members to the panels in any combination and in accordance with rules promulgated by the board,
except in hearings involving commutation and pardons. The chair may participate on any panel and
when doing so is chair of the panel. The chair of the board may designate the chair for any other
panel.
(c) No restitution may be ordered, no fine, forfeiture, or restitution remitted, no parole,
pardon, or commutation granted or sentence terminated, except after a full hearing before the board
or the board's appointed examiner in open session. Any action taken under this subsection other than
by a majority of the board shall be affirmed by a majority of the board.
(d) A commutation or pardon may be granted only after a full hearing before the board.
(e) The board shall determine restitution in an amount that does not exceed complete
restitution if determined by the court in accordance with Section [
(2) (a) In the case of original parole grant hearings, rehearings, and parole revocation
hearings, timely prior notice of the time and place of the hearing shall be given to the defendant, the
county or district attorney's office responsible for prosecution of the case, the sentencing court, law
enforcement officials responsible for the defendant's arrest and conviction, and whenever possible,
the victim or the victim's family.
(b) Notice to the victim, his representative, or his family shall include information provided
in Section 77-27-9.5 , and any related rules made by the board under that section. This information
shall be provided in terms that are reasonable for the lay person to understand.
(3) Decisions of the board in cases involving paroles, pardons, commutations or terminations
of sentence, restitution, or remission of fines or forfeitures are final and are not subject to judicial
review. Nothing in this section prevents the obtaining or enforcement of a civil judgment, including
restitution as provided in Section 77-27-6 .
(4) This chapter may not be construed as a denial of or limitation of the governor's power
to grant respite or reprieves in all cases of convictions for offenses against the state, except treason
or conviction on impeachment. However, respites or reprieves may not extend beyond the next
session of the Board of Pardons and Parole and the board, at that session, shall continue or terminate
the respite or reprieve, or it may commute the punishment, or pardon the offense as provided. In the
case of conviction for treason, the governor may suspend execution of the sentence until the case is
reported to the Legislature at its next session. The Legislature shall then either pardon or commute
the sentence, or direct its execution.
(5) In determining when, where, and under what conditions offenders serving sentences may
be paroled, pardoned, have restitution ordered, or have their fines or forfeitures remitted, or their
sentences commuted or terminated, the board shall consider whether the persons have made or are
prepared to make restitution as ascertained in accordance with the standards and procedures of
Section [
forfeitures, or commutation or termination of sentence.
(6) In determining whether parole may be terminated, the board shall consider the offense
committed by the parolee, the parole period as provided in Section 76-3-202 , and in accordance with
Section 77-27-13 .
Section 10. Section 77-27-6 is amended to read:
77-27-6. Payment of restitution.
(1) When the Board of Pardons and Parole orders the release on parole of an inmate who has
been sentenced to make restitution pursuant to [
Victims Restitution Act, or whom the board has ordered to make restitution, and all or a portion of
restitution is still owing, the board may establish a schedule, including both complete and
court-ordered restitution, by which payment of the restitution shall be made, or order compensatory
or other service in lieu of or in combination with restitution. In fixing the schedule and supervising
the paroled offender's performance, the board may consider the factors specified in [
(2) The board may impose any court order for restitution and order that a defendant make
restitution in an amount not to exceed the pecuniary damages to the victim of the offense of which
the defendant has been convicted, the victim of any other criminal conduct admitted to by the
defendant to the sentencing court, or for conduct for which the defendant has agreed to make
restitution as part of a plea agreement, unless the board applying the criteria as set forth in
[
(3) The board may also make orders of restitution for recovery of any or all costs incurred
by the Department of Corrections or the state or any other agency arising out of the defendant's needs
or conduct.
(4) If the defendant, upon termination of the parole period owes outstanding fines,
restitution, or other assessed costs, the matter shall be referred to the district court for civil collection
remedies. The Board of Pardons and Parole shall forward a restitution order to the sentencing court
to be entered on the judgment docket. The entry shall constitute a lien and is subject to the same
rules as a judgment for money in a civil judgment.
Section 11. Section 77-32a-1 is amended to read:
77-32a-1. Restitution and costs -- Convicted defendant may be required to pay.
In a criminal action the court may require a convicted defendant to [
costs.
Section 12. Section 77-37-3 is amended to read:
77-37-3. Bill of Rights.
(1) The bill of rights for victims and witnesses is:
(a) Victims and witnesses have a right to be informed as to the level of protection from
intimidation and harm available to them, and from what sources, as they participate in criminal
justice proceedings as designated by Section 76-8-508 , regarding witness tampering, and Section
76-8-509 , regarding threats against a victim. Law enforcement, prosecution, and corrections
personnel have the duty to timely provide this information in a form that is useful to the victim.
(b) Victims and witnesses, including children and their guardians, have a right to be
informed and assisted as to their role in the criminal justice process. All criminal justice agencies
have the duty to provide this information and assistance.
(c) Victims and witnesses have a right to clear explanations regarding relevant legal
proceedings; these explanations shall be appropriate to the age of child victims and witnesses. All
criminal justice agencies have the duty to provide these explanations.
(d) Victims and witnesses should have a secure waiting area that does not require them to
be in close proximity to defendants or the family and friends of defendants. Agencies controlling
facilities shall, whenever possible, provide this area.
(e) Victims are entitled to restitution or reparations, including medical costs, as provided in
Title 63, Chapter 25a, Criminal Justice and Substance Abuse, and Sections 62A-7-122 , [
77-38a-302 , and 77-27-6 . State and local government agencies that serve victims have the duty to
have a functional knowledge of the procedures established by the Utah Crime Victims' Reparations
Board and to inform victims of these procedures.
(f) Victims and witnesses have a right to have any personal property returned as provided
in Sections 77-24-1 through 77-24-5 . Criminal justice agencies shall expeditiously return the
property when it is no longer needed for court law enforcement or prosecution purposes.
(g) Victims and witnesses have the right to reasonable employer intercession services,
including pursuing employer cooperation in minimizing employees' loss of pay and other benefits
resulting from their participation in the criminal justice process. Officers of the court shall provide
these services and shall consider victims' and witnesses' schedules so that activities which conflict
can be avoided. Where conflicts cannot be avoided, the victim may request that the responsible
agency intercede with employers or other parties.
(h) Victims and witnesses, particularly children, should have a speedy disposition of the
entire criminal justice process. All involved public agencies shall establish policies and procedures
to encourage speedy disposition of criminal cases.
(i) Victims and witnesses have the right to timely notice of judicial proceedings they are to
attend and timely notice of cancellation of any proceedings. Criminal justice agencies have the duty
to provide these notifications. Defense counsel and others have the duty to provide timely notice to
prosecution of any continuances or other changes that may be required.
(j) Victims of sexual offenses have a right to be informed of their right to request voluntary
testing for themselves for HIV infection as provided in Section 76-5-503 and to request mandatory
testing of the convicted sexual offender for HIV infection as provided in Section 76-5-502 . The law
enforcement office where the sexual offense is reported shall have the responsibility to inform
victims of this right.
(2) Informational rights of the victim under this chapter are based upon the victim providing
his current address and telephone number to the criminal justice agencies involved in the case.
Section 13. Section 77-38a-302 is amended to read:
77-38a-302. Restitution criteria.
(1) When a defendant is convicted of criminal activity that has resulted in pecuniary
damages, in addition to any other sentence it may impose, the court shall order that the defendant
make restitution to victims of crime as provided in this [
the defendant has agreed to make restitution as part of a plea disposition. For purposes of restitution,
a victim has the meaning as defined in Subsection 77-38a-102 [
restitution is appropriate, the court shall follow the criteria and procedures as provided in
Subsections (2) through (5).
(2) In determining restitution, the court shall determine complete restitution and
court-ordered restitution.
(a) "Complete restitution" means restitution necessary to compensate a victim for all losses
caused by the defendant.
(b) "Court-ordered restitution" means the restitution the court having criminal jurisdiction
orders the defendant to pay as a part of the criminal sentence at the time of sentencing.
(c) Complete restitution and court-ordered restitution shall be determined as provided in
Subsection (5).
(3) If the court determines that restitution is appropriate or inappropriate under this part, the
court shall make the reasons for the decision part of the court record.
(4) If the defendant objects to the imposition, amount, or distribution of the restitution, the
court shall at the time of sentencing allow the defendant a full hearing on the issue.
(5) (a) For the purpose of determining restitution for an offense, the offense shall include any
criminal conduct admitted by the defendant to the sentencing court or to which the defendant agrees
to pay restitution. A victim of an offense that involves as an element a scheme, a conspiracy, or a
pattern of criminal activity, includes any person directly harmed by the defendant's criminal conduct
in the course of the scheme, conspiracy, or pattern.
(b) In determining the monetary sum and other conditions for complete restitution, the court
shall consider all relevant facts, including:
(i) the cost of the damage or loss if the offense resulted in damage to or loss or destruction
of property of a victim of the offense;
(ii) the cost of necessary medical and related professional services and devices relating to
physical or mental health care, including nonmedical care and treatment rendered in accordance with
a method of healing recognized by the law of the place of treatment;
(iii) the cost of necessary physical and occupational therapy and rehabilitation;
(iv) the income lost by the victim as a result of the offense if the offense resulted in bodily
injury to a victim; and
(v) the cost of necessary funeral and related services if the offense resulted in the death of
a victim.
(c) In determining the monetary sum and other conditions for court-ordered restitution, the
court shall consider the factors listed in Subsections (5)(a) and (b) and:
(i) the financial resources of the defendant and the burden that payment of restitution will
impose, with regard to the other obligations of the defendant;
(ii) the ability of the defendant to pay restitution on an installment basis or on other
conditions to be fixed by the court;
(iii) the rehabilitative effect on the defendant of the payment of restitution and the method
of payment; and
(iv) other circumstances which the court determines may make restitution inappropriate.
(d) The court may decline to make an order or may defer entering an order of restitution if
the court determines that the complication and prolongation of the sentencing process, as a result of
considering an order of restitution under this subsection, substantially outweighs the need to provide
restitution to the victim.
Section 14. Section 77-38a-501 is amended to read:
77-38a-501. Default and sanctions.
When a defendant defaults in the payment of a judgment for restitution or any installment
ordered, the court, on motion of the prosecutor, parole or probation agent, victim, or on its own
motion may impose sanctions against the defendant as provided in [
76-3-201 [
Section 15. Repealer.
This act repeals:
Section 76-3-201.2, Civil action by victim for damages.
[Bill Documents][Bills Directory]