H.B. 238 Enrolled

UTAH CODE OF CRIMINAL PROCEDURE
AMENDMENTS
2003 GENERAL SESSION
STATE OF UTAH
Sponsor: Katherine M. Bryson
This act clarifies provisions of the Code of Criminal Procedure relating to the withdrawal
of guilty pleas, expert testimony, and suspension of sentences.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
77-13-6, as last amended by Chapter 16, Laws of Utah 1994
77-17-13, as last amended by Chapter 43, Laws of Utah 1999
77-18-1, as last amended by Chapter 8, Laws of Utah 2002, Fifth Special Session
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 77-13-6 is amended to read:
77-13-6. Withdrawal of plea.
(1) A plea of not guilty may be withdrawn at any time prior to conviction.
(2) (a) A plea of guilty or no contest may be withdrawn only upon [good cause shown
and with] leave of the court[.] and a showing that it was not knowingly and voluntarily made.
(b) A request to withdraw a plea of guilty or no contest [is], except for a plea held in
abeyance shall be made by motion [and shall be made within 30 days after the entry of the plea.
(3) This section does not restrict the rights of an imprisoned person under Rule 65B, Utah
Rules of Civil Procedure.] before sentence is announced. Sentence may not be announced
unless the motion is denied. For a plea held in abeyance, a motion to withdraw the plea shall
be made within 30 days of pleading guilty or no contest.
(c) Any challenge to a guilty plea not made within the time period specified in
Subsection (2)(c) shall be pursued under Title 78, Chapter 35a, Post-Conviction Remedies Act,
and Rule 65C, Utah Rules of Civil Procedure.
Section 2. Section 77-17-13 is amended to read:
77-17-13. Expert testimony generally -- Notice requirements.

(1) (a) If the prosecution or the defense intends to call any expert to testify in a felony
case at trial or any hearing, excluding a preliminary hearing held pursuant to Rule 7 of the Utah
Rules of Criminal Procedure, the party intending to call the expert shall give notice to the
opposing party as soon as practicable but not less than 30 days before trial or ten days before the
hearing.
(b) Notice shall include the name and address of the expert, the expert's curriculum vitae,
and [a copy of the expert's report. (2) (a) The expert shall prepare a written report relating to the
proposed testimony. (b) If the expert has not prepared a report or the report does not adequately
inform concerning the substance of] one of the following:
(i) a copy of the expert's report, if one exists; or
(ii) a written explanation of the expert's proposed [testimony including any opinion and
the bases and reasons of that opinion, the party intending to call the expert shall provide to the
opposing party a written explanation of the expert's anticipated] testimony sufficient to give the
opposing party adequate notice to prepare to meet the testimony[, followed by a copy of any
report prepared by the expert when available.]; and
(iii) a notice that the expert is available to cooperatively consult with the opposing party
on reasonable notice.
(c) The party intending to call the expert is responsible for any fee charged by the expert
for the consultation.
(2) If an expert's anticipated testimony will be based in whole or part on the results of
any tests or other specialized data, the party intending to call the witness shall provide to the
opposing party the information upon request.
(3) [(a)] As soon as practicable after receipt of the expert's report or the information
concerning the expert's proposed testimony, the party receiving notice shall provide to the other
party notice of witnesses whom the party anticipates calling to rebut the expert's testimony,
including the [name and address of any expert witness and the expert's curriculum vitae. If
available, a report of any rebuttal expert shall be provided to the other party] information
required under Subsection (1)(b).

- 2 -

[(b) If the rebuttal expert has not prepared a report or the report does not adequately
inform concerning the substance of the expert's proposed testimony, or in the event the rebuttal
witness is not an expert, the party intending to call the rebuttal witness shall provide a written
explanation of the witness's anticipated rebuttal testimony sufficient to give the opposing party
adequate notice to prepare to meet the testimony, followed by a copy of any report prepared by
any rebuttal expert when available.]
(4) (a) If the defendant or the prosecution fails to [meet] substantially comply with the
requirements of this section, the opposing party shall, if necessary to prevent substantial
prejudice, be entitled to a continuance of the trial or hearing sufficient to allow preparation to
meet the testimony.
(b) If the court finds that the failure to comply with this section is the result of bad faith
on the part of any party or attorney, the court shall impose appropriate sanctions. The remedy of
exclusion of the expert's testimony will only apply if the court finds that a party deliberately
violated the provisions of this section.
(5) (a) For purposes of this section, testimony of an expert at a preliminary hearing held
pursuant to Rule 7 of the Utah Rules of Criminal Procedure constitutes notice of the expert, the
expert's qualifications, and a report of the expert's proposed trial testimony as to the subject
matter testified to by the expert at the preliminary hearing.
(b) Upon request, the party who called the expert at the preliminary hearing shall provide
the opposing party with a copy of the expert's curriculum vitae as soon as practicable prior to trial
or any hearing at which the expert may be called as an expert witness.
(6) This section does not apply to the use of an expert who is an employee of the state or
its political subdivisions, so long as the opposing party is on reasonable notice through general
discovery that the expert may be called as a witness at trial, and the witness is made available to
cooperatively consult with the opposing party upon reasonable notice.
Section 3. 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

- 3 -

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, after imposing sentence, suspend the [imposition or] execution of the
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.

- 4 -

(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.
(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 Title 77, 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

- 5 -

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;

- 6 -

(ix) make restitution or reparation to the victim or victims with interest in accordance
with Title 77, Chapter 38a, Crime Victims Restitution Act; and
(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(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.

- 7 -

(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

- 8 -

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 Substance Abuse and 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

- 9 -

(c) persons described in Subsection 62A-15-610 (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

- 10 -

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.

- 11 -