H.B. 5012

1

CORRECTIONAL SERVICES AMENDMENTS
2 2002 FIFTH SPECIAL SESSION
3 STATE OF UTAH
4 Sponsor: Paul Ray
5 This act modifies the Code of Criminal Procedure by providing that the Department of
6 Corrections is not required to provide supervision for the probation of defendants convicted
7 of class A misdemeanors, in addition to B and C misdemeanors and infractions which the
8 Department of Corrections is currently not required to supervise. This act also provides that
9 the Department of Corrections is not required to provide presentence investigations on class
10 A or B misdemeanors, adding these misdemeanors to the class C and infraction offenses
11 regarding which the department is currently not required to provide presentence
12 investigations. This act has an immediate effective.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 77-18-1, as last amended by Chapter 35, Laws of Utah 2002
16 Be it enacted by the Legislature of the state of Utah:
17 Section 1. Section 77-18-1 is amended to read:
18 77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation -- Supervision
19 -- Presentence investigation -- Standards -- Confidentiality -- Terms and conditions --
20 Termination, revocation, modification, or extension -- Hearings -- Electronic monitoring.
21 (1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea in
22 abeyance agreement, the court may hold the plea in abeyance as provided in Title 77, Chapter 2a,
23 Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
24 (2) (a) On a plea of guilty, guilty and mentally ill, no contest, or conviction of any crime
25 or offense, the court may suspend the imposition or execution of sentence and place the defendant
26 on probation. The court may place the defendant:
27 (i) on probation under the supervision of the Department of Corrections except in cases

28 of class A, B, and C misdemeanors or infractions;
29 (ii) on probation with an agency of local government or with a private organization; or
30 (iii) on bench probation under the jurisdiction of the sentencing court.
31 (b) (i) The legal custody of all probationers under the supervision of the department is with
32 the department.
33 (ii) The legal custody of all probationers under the jurisdiction of the sentencing court is
34 vested as ordered by the court.
35 (iii) The court has continuing jurisdiction over all probationers.
36 (3) (a) The department shall establish supervision and presentence investigation standards
37 for all individuals referred to the department in accordance with Subsection (4). These standards
38 shall be based on:
39 (i) the type of offense;
40 (ii) the demand for services;
41 (iii) the availability of agency resources;
42 (iv) the public safety; and
43 (v) other criteria established by the department to determine what level of services shall
44 be provided.
45 (b) Proposed supervision and investigation standards shall be submitted to the Judicial
46 Council and the Board of Pardons and Parole on an annual basis for review and comment prior to
47 adoption by the department.
48 (c) The Judicial Council and the department shall establish procedures to implement the
49 supervision and investigation standards.
50 (d) The Judicial Council and the department shall annually consider modifications to the
51 standards based upon criteria in Subsection (3)(a) and other criteria as they consider appropriate.
52 (e) The Judicial Council and the department shall annually prepare an impact report and
53 submit it to the appropriate legislative appropriations subcommittee.
54 (4) Notwithstanding other provisions of law, the department is not required to supervise
55 the probation of persons convicted of class A, B, or C misdemeanors or infractions or to conduct
56 presentence investigation reports on class A, B, or C misdemeanors or infractions. However, the
57 department may supervise the probation of class A and B misdemeanants in accordance with
58 department resources and standards. This Subsection (4) applies to probation for misdemeanor

59 and infraction offenses under Subsection (10)(a)(i).
60 (5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of the
61 defendant, continue the date for the imposition of sentence for a reasonable period of time for the
62 purpose of obtaining a presentence investigation report from the department or information from
63 other sources about the defendant.
64 (b) The presentence investigation report shall include a victim impact statement according
65 to guidelines set in Section 77-38a-203 describing the effect of the crime on the victim and the
66 victim's family.
67 (c) The presentence investigation report shall include a specific statement of pecuniary
68 damages, accompanied by a recommendation from the department regarding the payment of
69 restitution with interest by the defendant in accordance with Title 77, Chapter 38a, Crime Victims
70 Restitution Act.
71 (d) The contents of the presentence investigation report, including any diagnostic
72 evaluation report ordered by the court under Section 76-3-404 , are protected and are not available
73 except by court order for purposes of sentencing as provided by rule of the Judicial Council or for
74 use by the department.
75 (6) (a) The department shall provide the presentence investigation report to the defendant's
76 attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review,
77 three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation
78 report, which have not been resolved by the parties and the department prior to sentencing, shall
79 be brought to the attention of the sentencing judge, and the judge may grant an additional ten
80 working days to resolve the alleged inaccuracies of the report with the department. If after ten
81 working days the inaccuracies cannot be resolved, the court shall make a determination of
82 relevance and accuracy on the record.
83 (b) If a party fails to challenge the accuracy of the presentence investigation report at the
84 time of sentencing, that matter shall be considered to be waived.
85 (7) At the time of sentence, the court shall receive any testimony, evidence, or information
86 the defendant or the prosecuting attorney desires to present concerning the appropriate sentence.
87 This testimony, evidence, or information shall be presented in open court on record and in the
88 presence of the defendant.
89 (8) While on probation, and as a condition of probation, the court may require that the

90 defendant:
91 (a) perform any or all of the following:
92 (i) pay, in one or several sums, any fine imposed at the time of being placed on probation;
93 (ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
94 (iii) provide for the support of others for whose support he is legally liable;
95 (iv) participate in available treatment programs;
96 (v) serve a period of time, not to exceed one year, in a county jail designated by the
97 department, after considering any recommendation by the court as to which jail the court finds
98 most appropriate;
99 (vi) serve a term of home confinement, which may include the use of electronic
100 monitoring;
101 (vii) participate in compensatory service restitution programs, including the compensatory
102 service program provided in Section 78-11-20.7 ;
103 (viii) pay for the costs of investigation, probation, and treatment services;
104 (ix) make restitution or reparation to the victim or victims with interest in accordance with
105 Title 77, Chapter 38a, Crime Victims Restitution Act; and
106 (x) comply with other terms and conditions the court considers appropriate; and
107 (b) if convicted on or after May 5, 1997:
108 (i) complete high school classwork and obtain a high school graduation diploma, a GED
109 certificate, or a vocational certificate at the defendant's own expense if the defendant has not
110 received the diploma, GED certificate, or vocational certificate prior to being placed on probation;
111 or
112 (ii) provide documentation of the inability to obtain one of the items listed in Subsection
113 (8)(b)(i) because of:
114 (A) a diagnosed learning disability; or
115 (B) other justified cause.
116 (9) The department shall collect and disburse the account receivable as defined by Section
117 76-3-201.1 , with interest and any other costs assessed under Section 64-13-21 during:
118 (a) the parole period and any extension of that period in accordance with Subsection
119 77-27-6 (4); and
120 (b) the probation period in cases for which the court orders supervised probation and any

121 extension of that period by the department in accordance with Subsection [ 77-18-1 ](10).
122 (10) (a) (i) Probation may be terminated at any time at the discretion of the court or upon
123 completion without violation of 36 months probation in felony or class A misdemeanor cases, or
124 12 months in cases of class B or C misdemeanors or infractions.
125 (ii) (A) If, upon expiration or termination of the probation period under Subsection
126 (10)(a)(i), there remains an unpaid balance upon the account receivable as defined in Section
127 76-3-201.1 , the court may retain jurisdiction of the case and continue the defendant on bench
128 probation for the limited purpose of enforcing the payment of the account receivable.
129 (B) In accordance with Section 77-18-6 , the court shall record in the registry of civil
130 judgments any unpaid balance not already recorded and immediately transfer responsibility to
131 collect the account to the Office of State Debt Collection.
132 (iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its
133 own motion, the court may require the defendant to show cause why his failure to pay should not
134 be treated as contempt of court.
135 (b) (i) The department shall notify the sentencing court, the Office of State Debt
136 Collection, and the prosecuting attorney in writing in advance in all cases when termination of
137 supervised probation will occur by law.
138 (ii) The notification shall include a probation progress report and complete report of details
139 on outstanding accounts receivable.
140 (11) (a) (i) Any time served by a probationer outside of confinement after having been
141 charged with a probation violation and prior to a hearing to revoke probation does not constitute
142 service of time toward the total probation term unless the probationer is exonerated at a hearing
143 to revoke the probation.
144 (ii) Any time served in confinement awaiting a hearing or decision concerning revocation
145 of probation does not constitute service of time toward the total probation term unless the
146 probationer is exonerated at the hearing.
147 (b) The running of the probation period is tolled upon the filing of a violation report with
148 the court alleging a violation of the terms and conditions of probation or upon the issuance of an
149 order to show cause or warrant by the court.
150 (12) (a) (i) Probation may not be modified or extended except upon waiver of a hearing
151 by the probationer or upon a hearing and a finding in court that the probationer has violated the

152 conditions of probation.
153 (ii) Probation may not be revoked except upon a hearing in court and a finding that the
154 conditions of probation have been violated.
155 (b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to constitute
156 violation of the conditions of probation, the court that authorized probation shall determine if the
157 affidavit establishes probable cause to believe that revocation, modification, or extension of
158 probation is justified.
159 (ii) If the court determines there is probable cause, it shall cause to be served on the
160 defendant a warrant for his arrest or a copy of the affidavit and an order to show cause why his
161 probation should not be revoked, modified, or extended.
162 (c) (i) The order to show cause shall specify a time and place for the hearing and shall be
163 served upon the defendant at least five days prior to the hearing.
164 (ii) The defendant shall show good cause for a continuance.
165 (iii) The order to show cause shall inform the defendant of a right to be represented by
166 counsel at the hearing and to have counsel appointed for him if he is indigent.
167 (iv) The order shall also inform the defendant of a right to present evidence.
168 (d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
169 (ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney shall
170 present evidence on the allegations.
171 (iii) The persons who have given adverse information on which the allegations are based
172 shall be presented as witnesses subject to questioning by the defendant unless the court for good
173 cause otherwise orders.
174 (iv) The defendant may call witnesses, appear and speak in his own behalf, and present
175 evidence.
176 (e) (i) After the hearing the court shall make findings of fact.
177 (ii) Upon a finding that the defendant violated the conditions of probation, the court may
178 order the probation revoked, modified, continued, or that the entire probation term commence
179 anew.
180 (iii) If probation is revoked, the defendant shall be sentenced or the sentence previously
181 imposed shall be executed.
182 (13) The court may order the defendant to commit himself to the custody of the Division

183 of Mental Health for treatment at the Utah State Hospital as a condition of probation or stay of
184 sentence, only after the superintendent of the Utah State Hospital or his designee has certified to
185 the court that:
186 (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
187 (b) treatment space at the hospital is available for the defendant; and
188 (c) persons described in Subsection 62A-12-209 (2)(g) are receiving priority for treatment
189 over the defendants described in this Subsection (13).
190 (14) Presentence investigation reports, including presentence diagnostic evaluations, are
191 classified protected in accordance with Title 63, Chapter 2, Government Records Access and
192 Management Act. Notwithstanding Sections 63-2-403 and 63-2-404 , the State Records Committee
193 may not order the disclosure of a presentence investigation report. Except for disclosure at the
194 time of sentencing pursuant to this section, the department may disclose the presentence
195 investigation only when:
196 (a) ordered by the court pursuant to Subsection 63-2-202 (7);
197 (b) requested by a law enforcement agency or other agency approved by the department
198 for purposes of supervision, confinement, and treatment of the offender;
199 (c) requested by the Board of Pardons and Parole;
200 (d) requested by the subject of the presentence investigation report or the subject's
201 authorized representative; or
202 (e) requested by the victim of the crime discussed in the presentence investigation report
203 or the victim's authorized representative, provided that the disclosure to the victim shall include
204 only information relating to statements or materials provided by the victim, to the circumstances
205 of the crime including statements by the defendant, or to the impact of the crime on the victim or
206 the victim's household.
207 (15) (a) The court shall consider home confinement as a condition of probation under the
208 supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5 .
209 (b) The department shall establish procedures and standards for home confinement,
210 including electronic monitoring, for all individuals referred to the department in accordance with
211 Subsection (16).
212 (16) (a) If the court places the defendant on probation under this section, it may order the
213 defendant to participate in home confinement through the use of electronic monitoring as described

214 in this section until further order of the court.
215 (b) The electronic monitoring shall alert the department and the appropriate law
216 enforcement unit of the defendant's whereabouts.
217 (c) The electronic monitoring device shall be used under conditions which require:
218 (i) the defendant to wear an electronic monitoring device at all times; and
219 (ii) that a device be placed in the home of the defendant, so that the defendant's compliance
220 with the court's order may be monitored.
221 (d) If a court orders a defendant to participate in home confinement through electronic
222 monitoring as a condition of probation under this section, it shall:
223 (i) place the defendant on probation under the supervision of the Department of
224 Corrections;
225 (ii) order the department to place an electronic monitoring device on the defendant and
226 install electronic monitoring equipment in the residence of the defendant; and
227 (iii) order the defendant to pay the costs associated with home confinement to the
228 department or the program provider.
229 (e) The department shall pay the costs of home confinement through electronic monitoring
230 only for those persons who have been determined to be indigent by the court.
231 (f) The department may provide the electronic monitoring described in this section either
232 directly or by contract with a private provider.
233 Section 2. Effective date.
234 If approved by two-thirds of all the members elected to each house, this act takes effect
235 upon approval by the governor, or the day following the constitutional time limit of Utah
236 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
237 date of veto override.




Legislative Review Note
as of 7-9-02 11:55 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel