S.B. 27 Enrolled

AMENDMENTS TO GUILTY AND MENTALLY
ILL
2002 GENERAL SESSION
STATE OF UTAH
Sponsor: David L. Gladwell
This act modifies the Code of Criminal Procedure, creating a new plea of "guilty and
mentally ill at the time of the offense" and setting standards for jury instructions on mental
defenses.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
77-13-1, as last amended by Chapter 49, Laws of Utah 1983
77-16a-102, as enacted by Chapter 171, Laws of Utah 1992
77-16a-103, as enacted by Chapter 171, Laws of Utah 1992
77-16a-201, as last amended by Chapter 209, Laws of Utah 2001
REPEALS:
77-16-1, as enacted by Chapter 15, Laws of Utah 1980
77-16-2, as last amended by Chapter 227, Laws of Utah 1993
77-16-3, as enacted by Chapter 15, Laws of Utah 1980
77-16-4, as enacted by Chapter 15, Laws of Utah 1980
77-16-5, as last amended by Chapter 13, Laws of Utah 1994
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 77-13-1 is amended to read:
77-13-1. Kinds of pleas.
There are five kinds of pleas to an indictment or information:
(1) Not guilty;
(2) Guilty;
(3) No contest;
(4) Not guilty by reason of insanity; and
(5) Guilty and mentally ill at the time of the offense.

An alternative plea of not guilty or not guilty by reason of insanity may be entered.
Section 2. Section 77-16a-102 is amended to read:
77-16a-102. Jury instructions.
(1) If a defendant asserts a defense of not guilty by reason of insanity, the court shall instruct
the jury that it may find the defendant:
[(1)] (a) guilty;
[(2) not guilty;]
[(3) not guilty by reason of insanity;]
[(4)] (b) guilty and mentally ill at the time of the offense;
[(5)] (c) guilty of a lesser offense;
[(6)] (d) guilty of a lesser offense and mentally ill[; or] at the time of the offense;
[(7) guilty of a lesser offense due to mental illness, but not a mental illness that warrants full
exoneration.]
(e) not guilty by reason of insanity; or
(f) not guilty.
(2) (a) When a defendant asserts a mental defense pursuant to Section 76-2-305 or asserts
special mitigation reducing the level of an offense pursuant to Section 76-5-205.5 , or when the
evidence raises the issue and either party requests the instruction, the jury shall be instructed that if
it finds a defendant guilty by proof beyond a reasonable doubt of any charged offense or lesser
included offense, it shall also return a special verdict indicating whether it finds that the defendant
was mentally ill at the time of the offense.
(b) If the jury finds the defendant guilty of the charged offense by proof beyond a reasonable
doubt, and by special verdict finds the defendant was mentally ill at the time of the offense, it shall
return the general verdict of "guilty and mentally ill at the time of the offense."
(c) If the jury finds the defendant guilty of a lesser offense by proof beyond a reasonable
doubt, and by special verdict finds the defendant was mentally ill at the time of the offense, it shall
return the general verdict of "guilty of a lesser offense and mentally ill at the time of the offense."
(d) If the jury finds the defendant guilty of the charged offense or a lesser included offense

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and does not find that the defendant was mentally ill at the time of the offense, the jury shall return
a verdict of "guilty" of that offense, along with the special verdict form indicating that the jury did
not find the defendant mentally ill at the time of the offense.
(e) The special verdict shall be returned by the jury at the same time as the general verdict,
to indicate the basis for its general verdict.
(3) In determining whether a defendant should be found guilty and mentally ill at the time
of the offense, the jury shall be instructed that the standard of proof applicable to a finding of mental
illness is by a preponderance of the evidence. The jury shall also be instructed that the standard of
preponderance of the evidence does not apply to the elements establishing a defendant's guilt, and
that the proof of the elements establishing a defendant's guilt of any offense must be proven beyond
a reasonable doubt.
Section 3. Section 77-16a-103 is amended to read:
77-16a-103. Plea of guilty and mentally ill.
(1) Upon a plea of guilty and mentally ill at the time of the offense being tendered by a
defendant to any charge, the court shall hold a hearing within a reasonable time to determine whether
the defendant is currently mentally ill.
(2) The court may order the department to examine the defendant, and may receive the
testimony of any public or private expert witness offered by the defendant or the prosecutor. The
defendant may be placed in the Utah State Hospital for that examination only upon approval by the
executive director.
(3) (a) A defendant who tenders a plea of guilty and mentally ill at the time of the offense
shall be examined first by the trial judge, in compliance with the standards for taking pleas of guilty.
The defendant shall be advised that a plea of guilty and mentally ill at the time of the offense is a
plea of guilty and not a contingent plea.
(b) If the defendant is later found not to be currently mentally ill, that plea remains a valid
plea of guilty and mentally ill at the time of the offense, and the defendant shall be sentenced as any
other offender.
(4) If the court concludes that the defendant is currently mentally ill his plea shall be

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accepted and he shall be sentenced in accordance with Section 77-16a-104 .
(5) (a) When the offense is a state offense, expenses of examination, observation, and
treatment for the defendant shall be paid by the department.
(b) Travel expenses shall be paid by the county where prosecution is commenced.
(c) Expenses of examination for defendants charged with violation of a municipal or county
ordinance shall be paid by the municipality or county that commenced the prosecution.
Section 4. Section 77-16a-201 is amended to read:
77-16a-201. Probation.
(1) (a) [When] In felony cases, when the court proposes to place on probation a defendant
who has pled or is found guilty and mentally ill at the time of the offense, it shall request UDC to
provide a presentence investigation report regarding whether probation is appropriate for that
defendant and, if so, recommending a specific treatment program. If the defendant is placed on
probation, that treatment program shall be made a condition of probation, and the defendant shall
remain under the jurisdiction of the sentencing court.
(b) The court may not place [a mentally ill] an offender who has been convicted of [a capital
felony on probation] the felony offenses listed in Section 76-3-406 on probation, regardless of
whether he is or has been mentally ill.
(2) The period of probation for a felony offense committed by a person who has been found
guilty and mentally ill at the time of the offense may be for no less than five years[, or until the
expiration of the defendant's sentence, whichever occurs first]. Probation for those offenders may
not be subsequently reduced by the sentencing court without consideration of an updated report on
the mental health status of the defendant.
(3) (a) Treatment ordered by the court under this section may be provided by or under
contract with the department, a mental health facility, a local mental health authority, or, with the
approval of the sentencing court, any other public or private mental health provider.
(b) The entity providing treatment under this section shall file a report with the defendant's
probation officer at least every six months during the term of probation.
(c) Any request for termination of probation regarding a defendant who is receiving

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treatment under this section shall include a current mental health report prepared by the treatment
provider.
(4) Failure to continue treatment or any other condition of probation, except by agreement
with the entity providing treatment and the sentencing court, is a basis for initiating probation
violation hearings.
(5) The court may not release a mentally ill offender into the community, as a part of
probation, if it finds by clear and convincing evidence that he:
(a) poses an immediate physical danger to himself or others, including jeopardizing his own
or others' safety, health, or welfare if released into the community; or
(b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
shelter, if released into the community.
(6) A mentally ill offender who is not eligible for release into the community under the
provisions of Subsection (5) may be placed by the court, on probation, in an appropriate mental
health facility.
Section 5. Repealer.
This act repeals:
Section 77-16-1, Grounds for ordering examination.
Section 77-16-2, Appointment of examining alienists -- Report -- Additional evidence
by defendant -- Findings -- Sentencing -- Compensation of alienists.
Section 77-16-3, Care and treatment of persons committed.
Section 77-16-4, Defendant incapable of treatment at state hospital -- Hearing --
Proceeding.
Section 77-16-5, Recovery of committed person -- Certification to Board of Pardons and
Parole.

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