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H.B. 76
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7 LONG TITLE
8 General Description:
9 This bill provides specific references to offenses to be included in the definition of a
10 violent felony under the Criminal Code.
11 Highlighted Provisions:
12 This bill:
13 . adds listed offenses to the definition of a violent felony, including:
14 . mayhem;
15 . stalking;
16 . terroristic threat; and
17 . child abuse;
18 . removes requirement that proof of defendant's conduct as a habitual violent offender
19 be provided at the preliminary hearing or at the trial as an element of the offense;
20 and
21 . amends provisions regarding notice to the defendant that the defendant is subject to
22 punishment as a habitual violent offender.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 This bill provides an immediate effective date.
27 Utah Code Sections Affected:
28 AMENDS:
29 76-1-302, as last amended by Chapter 61, Laws of Utah 2003
30 76-3-203.5, as last amended by Chapter 140, Laws of Utah 2004
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32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 76-1-302 is amended to read:
34 76-1-302. Time limitations for prosecution of offenses -- Provisions if DNA
35 evidence would identify the defendant -- Commencement of prosecution.
36 (1) Except as otherwise provided, a prosecution for:
37 (a) a felony or negligent homicide shall be commenced within four years after it is
38 committed;
39 (b) a misdemeanor other than negligent homicide shall be commenced within two years
40 after it is committed; and
41 (c) any infraction shall be commenced within one year after it is committed.
42 (2) (a) A prosecution for the offenses listed in Subsections 76-3-203.5 (1)(c)(i)(A)
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44 the crime is unknown but DNA evidence is collected that would identify the person at a later
45 date.
46 (b) Subsection (2)(a) does not apply if the statute of limitations on a crime has run as of
47 May 5, 2003, and no charges have been filed.
48 (3) If the statute of limitations would have run but for the provisions of Subsection (2)
49 and identification of a perpetrator is made through DNA, a prosecution shall be commenced
50 within one year of the discovery of the identity of the perpetrator.
51 (4) A prosecution is commenced upon the finding and filing of an indictment by a
52 grand jury or upon the filing of a complaint or information.
53 Section 2. Section 76-3-203.5 is amended to read:
54 76-3-203.5. Habitual violent offender -- Definition -- Procedure -- Penalty.
55 (1) As used in this section:
56 (a) "Felony" means any [
57 other state, the United States, or any district, possession, or territory of the United States for
58 which the maximum punishment the offender may be subjected to exceeds one year in prison.
59 (b) "Habitual violent offender" means a person convicted within the state of any violent
60 felony and who[
61 committed to either prison in Utah or an equivalent correctional institution of another state or
62 of the United States either at initial sentencing or after revocation of probation.
63 (c) (i) "Violent felony" means any of the following offenses, or any attempt,
64 solicitation, or conspiracy to commit any of these offenses punishable as a felony:
65 (A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief
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67 (B) [
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69 (C) disarming a police officer, Section 76-5-102.8 ;
70 (D) aggravated assault, Section 76-5-103 ;
71 (E) aggravated assault by prisoner, Section 76-5-103.5 ;
72 (F) mayhem, Section 76-5-105 ;
73 (G) stalking, Subsection 76-5-106.5 (6);
74 (H) terroristic threat, Section 76-5-107 ;
75 (I) child abuse, Subsections 76-5-109 (2)(a) and (b);
76 (J) commission of domestic violence in the presence of a child, Section 76-5-109.1 ;
77 (K) abuse or neglect of disabled child, Section 76-5-110 ;
78 (L) abuse, neglect, or exploitation of a vulnerable adult, Section 76-5-111 ;
79 (M) endangerment of child or elder adult, Section 76-5-112.5 ;
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81 Homicide;
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83 under Title 76, Chapter 5, Part 3, Kidnapping;
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92 76-5-404.1 ;
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96 Part 2, Burglary and Criminal Trespass;
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103 threat or by use of force theft by extortion has been committed pursuant to Subsections
104 76-6-406 (2)(a), (b), and (i);
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106 by explosives or flammable materials under Section 76-8-715 ;
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108 under Subsections 76-10-306 (3) through (6);
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110 76-10-307 ;
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112 person under Section 76-10-503 ;
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115 76-10-1306 (1)(a);
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118 (ii) any felony [
119 United States, or any district, possession, or territory of the United States which would
120 constitute a violent felony as defined in this Subsection (1) if committed in this state.
121 (2) If a person is convicted in this state of a violent felony by plea or by verdict and the
122 trier of fact determines beyond a reasonable doubt that the person is a habitual violent offender
123 under this section, the penalty for a:
124 (a) third degree felony is as if the conviction were for a first degree felony;
125 (b) second degree felony is as if the conviction were for a first degree felony; or
126 (c) first degree felony remains the penalty for a first degree penalty except:
127 (i) the convicted person is not eligible for probation; and
128 (ii) the Board of Pardons and Parole shall consider that the convicted person is a
129 habitual violent offender as an aggravating factor [
130 incarceration.
131 (3) (a) [
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134 grand jury if an indictment is returned, shall provide notice in the information or indictment
135 that the defendant is subject to punishment as a habitual violent offender under this section.
136 Notice shall include the case number, court, and date of conviction or commitment of any case
137 relied upon by the prosecution.
138 (b) (i) The defendant shall serve notice in writing upon the prosecutor if the defendant
139 intends to deny that:
140 (A) the defendant is the person who was convicted or committed;
141 (B) the defendant was represented by counsel or had waived counsel; or
142 (C) the defendant's plea was understandingly or voluntarily entered.
143 (ii) The notice of denial shall be served not later than five days prior to trial and shall
144 state in detail the defendant's contention regarding the previous conviction and commitment.
145 (4) (a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to
146 a jury, the jury may not be told until after it returns its verdict on the underlying felony charge,
147 of the:
148 (i) defendant's previous convictions for violent felonies, except as otherwise provided
149 in the Utah Rules of Evidence; or
150 (ii) allegation against the defendant of being a habitual violent offender.
151 (b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of
152 being an habitual violent offender by the same jury, if practicable, unless the defendant waives
153 the jury, in which case the allegation shall be tried immediately to the court.
154 (c) (i) Prior to or at the time of sentencing the trier of fact shall determine if this section
155 applies.
156 (ii) The trier of fact shall consider any evidence presented at trial and the prosecution
157 and the defendant shall be afforded an opportunity to present any necessary additional
158 evidence.
159 (iii) Prior to sentencing under this section, the trier of fact shall determine whether this
160 section is applicable beyond a reasonable doubt.
161 (d) If any previous conviction and commitment is based upon a plea of guilty or no
162 contest, there is a rebuttable presumption that the conviction and commitment were regular and
163 lawful in all respects if the conviction and commitment occurred after January 1, 1970. If the
164 conviction and commitment occurred prior to January 1, 1970, the burden is on the prosecution
165 to establish by a preponderance of the evidence that the defendant was then represented by
166 counsel or had lawfully waived his right to have counsel present, and that his plea was
167 understandingly and voluntarily entered.
168 (e) If the trier of fact finds this section applicable, the court shall enter that specific
169 finding on the record and shall indicate in the order of judgment and commitment that the
170 defendant has been found by the trier of fact to be a habitual violent offender and is sentenced
171 under this section.
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176 76-3-408 apply to a felony conviction defined in Title 76, Chapter 5, Part 4, Sexual Offenses,
177 and supersede the provisions of this section.
178 (b) Notwithstanding Subsection [
179 (i) the convictions under Sections 76-5-404 and 76-5a-3 are governed by the
180 enhancement provisions of this section; and
181 (ii) the "violent felony" offense defined in Subsection (1)(c) shall include any felony
182 sexual offense violation of Title 76, Chapter 5, Part 4, Sexual Offenses, to determine if the
183 convicted person is a habitual violent offender.
184 Section 3. Effective date.
185 If approved by two-thirds of all the members elected to each house, this bill takes effect
186 upon approval by the governor, or the day following the constitutional time limit of Utah
187 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
188 the date of veto override.
Legislative Review Note
as of 1-11-05 2:38 PM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.