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S.B. 94 Enrolled





Sponsor: Gregory S. Bell

                  LONG TITLE
                  General Description:
                      This bill makes changes regarding the Board of Pardons and Parole's responsibility
                  concerning inmate restitution.
                  Highlighted Provisions:
                      This bill:
                      .    clarifies the definition of "pecuniary damages";
                      .    requires that the convicting court order restitution, if feasible, at the time of
                  sentencing or within one year of sentencing; and
                      .    provides that the Board of Pardons and Parole may determine restitution for an
                  inmate if the convicting court has not.
                  Monies Appropriated in this Bill:
                  Other Special Clauses:
                  Utah Code Sections Affected:
                      77-27-5, as last amended by Chapter 35, Laws of Utah 2002
                      77-27-6, as last amended by Chapter 35, Laws of Utah 2002
                      77-38a-102, as last amended by Chapter 278, Laws of Utah 2003
                      77-38a-203, as enacted by Chapter 137, Laws of Utah 2001
                      77-38a-302, as last amended by Chapter 285, Laws of Utah 2003
                  Be it enacted by the Legislature of the state of Utah:

                      Section 1. 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, ordered to
                  pay 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] may determine restitution [in an amount that does not exceed
                  complete restitution if determined by the court in accordance with Section] as provided in
                  Section 77-27-6 and Subsection 77-38a-302 (5)(d)(ii).
                      (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 77-38a-302 , as a condition of any parole, pardon, remission of fines or
                  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 2. 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 Title 77, Chapter 38a, Crime 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 Section 77-38a-302 .
                      (2) (a) The board may impose any court order for restitution [and].
                      (b) In accordance with Subsection 77-38a-302 (5)(d)(ii), the board may order that a
                  defendant make restitution [in an amount not to exceed the] for 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] that were not determined by
                  the court, unless the board applying the criteria as set forth in Section 77-38a-302 determines that
                  restitution is inappropriate.
                      (c) Except as provided in Subsection (2)(d), the board shall make all orders of restitution
                  within 60 days after the termination or expiration of the defendant's sentence.
                      (d) If, upon termination or expiration of a defendant's sentence, the board has continuing
                  jurisdiction over the defendant for a separate criminal offense, the board may defer making an
                  order of restitution until termination or expiration of all sentences for that defendant.
                      (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 or expiration of the [parole period] sentence owes
                  outstanding fines, restitution, or other assessed costs, or if the board makes an order of restitution
                  within 60 days after the termination or expiration of the defendant's sentence, 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

                      Section 3. Section 77-38a-102 is amended to read:
                       77-38a-102. Definitions.
                      As used in this chapter:
                      (1) "Conviction" includes a:
                      (a) judgment of guilt;
                      (b) a plea of guilty; or
                      (c) a plea of no contest.
                      (2) "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.
                      (3) "Department" means the Department of Corrections.
                      (4) "Diversion" means suspending criminal proceedings prior to conviction on the
                  condition that a defendant agree to participate in a rehabilitation program, make restitution to the
                  victim, or fulfill some other condition.
                      (5) "Party" means the prosecutor, defendant, or department involved in a prosecution.
                      (6) "Pecuniary damages" means all [special damages, but not general damages,]
                  demonstrable economic injury, whether or not yet incurred, 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] fair market value of property
                  taken, destroyed, broken, or otherwise harmed, and losses including lost earnings and medical
                  expenses, but excludes punitive or exemplary damages and pain and suffering .
                      (7) "Plea agreement" means an agreement entered between the prosecution and defendant
                  setting forth the special terms and conditions and criminal charges upon which the defendant will
                  enter a plea of guilty or no contest.
                      (8) "Plea in abeyance" means an order by a court, upon motion of the prosecution and the
                  defendant, accepting a plea of guilty or of no contest from the defendant but not, at that time,
                  entering judgment of conviction against him nor imposing sentence upon him on condition that
                  he comply with specific conditions as set forth in a plea in abeyance agreement.

                      (9) "Plea in abeyance agreement" means an agreement entered into between the
                  prosecution and the defendant setting forth the specific terms and conditions upon which,
                  following acceptance of the agreement by the court, a plea may be held in abeyance.
                      (10) "Plea disposition" means an agreement entered into between the prosecution and
                  defendant including diversion, plea agreement, plea in abeyance agreement, or any agreement by
                  which the defendant may enter a plea in any other jurisdiction or where charges are dismissed
                  without a plea.
                      (11) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
                  victim, including prejudgment interest, the accrual of interest from the time of sentencing,
                  insured damages, reimbursement for payment of a reward, and payment for expenses to a
                  governmental entity for extradition or transportation and as may be further defined by law.
                      (12) (a) "Reward" means a sum of money:
                      (i) offered to the public for information leading to the arrest and conviction of an
                  offender; and
                      (ii) that has been paid to a person or persons who provide this information, except that
                  the person receiving the payment may not be a codefendant, an accomplice, or a bounty hunter.
                      (b) "Reward" does not include any amount paid in excess of the sum offered to the
                      (13) "Screening" means the process used by a prosecuting attorney to terminate
                  investigative action, proceed with prosecution, move to dismiss a prosecution that has been
                  commenced, or cause a prosecution to be diverted.
                      (14) (a) "Victim" means any person whom the court determines has suffered pecuniary
                  damages as a result of the defendant's criminal activities.
                      (b) "Victim" may not include a codefendant or accomplice.
                      Section 4. Section 77-38a-203 is amended to read:
                       77-38a-203. Restitution determination -- Department of Corrections -- Presentence
                      (1) (a) The department shall prepare a presentence investigation report in accordance

                  with Subsection 77-18-1 (5). The prosecutor and law enforcement agency involved shall provide
                  all available victim information to the department upon request. The victim impact statement
                      (i) identify all victims of the offense;
                      (ii) itemize any economic loss suffered by the victim as a result of the offense;
                      (iii) include for each identifiable victim a specific statement of the recommended amount
                  of complete restitution as defined in Section 77-38a-302 , accompanied by a recommendation
                  from the department regarding the payment by the defendant of court-ordered restitution with
                  interest as defined in Section 77-38a-302 ;
                      (iv) identify any physical, mental, or emotional injuries suffered by the victim as a result
                  of the offense, and the seriousness and permanence;
                      (v) describe any change in the victim's personal welfare or familial relationships as a
                  result of the offense;
                      (vi) identify any request for mental health services initiated by the victim or the victim's
                  family as a result of the offense; and
                      (vii) contain any other information related to the impact of the offense upon the victim or
                  the victim's family that the court requires.
                      (b) The crime victim shall be responsible to provide to the department upon request all
                  invoices, bills, receipts, and other evidence of injury, loss of earnings, and out-of-pocket loss.
                  The crime victim shall also provide upon request:
                      (i) all documentation and evidence of compensation or reimbursement from insurance
                  companies or agencies of the state of Utah, any other state, or federal government received as a
                  direct result of the crime for injury, loss, earnings, or out-of-pocket loss; and
                      (ii) proof of identification, including date of birth, Social Security number, drivers
                  license number, next of kin, and home and work address and telephone numbers.
                      (c) The inability, failure, or refusal of the crime victim to provide all or part of the
                  requested information shall result in the court determining restitution based on the best
                  information available.

                      (2) (a) The court shall order the defendant as part of the presentence investigation to
                  submit to the department any information determined necessary to be disclosed for the purpose of
                  ascertaining the restitution.
                      (b) The willful failure or refusal of the defendant to provide all or part of the requisite
                  information shall constitute a waiver of any grounds to appeal or seek future amendment or
                  alteration of the restitution order predicated on the undisclosed information.
                      (c) If the defendant objects to the imposition, amount, or distribution of the restitution
                  recommended in the presentence investigation, [or if the department is unable to determine the
                  restitution for any reason,] the court shall set a hearing date to resolve the matter.
                      (d) If any party fails to challenge the accuracy of the presentence investigation report at
                  the time of sentencing, that matter shall be considered to be waived.
                      Section 5. 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 chapter, or for conduct for which 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 [(13)](14) and in determining
                  whether 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 or within one year after 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;
                      (v) up to five days of the individual victim's determinable wages that are lost due to theft
                  of or damage to tools or equipment items of a trade that were owned by the victim and were
                  essential to the victim's current employment at the time of the offense; and
                      (vi) 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 (5), substantially outweighs the
                  need to provide restitution to the victim.]
                      (d) (i) Except as provided in Subsection (5)(d)(ii), the court shall determine complete
                  restitution and court-ordered restitution, and shall make all restitution orders at the time of
                  sentencing if feasible, otherwise within one year after sentencing.
                      (ii) Any pecuniary damages that have not been determined by the court within one year
                  after sentencing may be determined by the Board of Pardons and Parole.
                      (e) The Board of Pardons and Parole may, within one year after sentencing, refer an order
                  of judgment and commitment back to the court for determination of restitution.

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