H.B. 130

1

ASSET PRESERVATION AMENDMENTS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Gregory H. Hughes
5 Senate Sponsor: Margaret Dayton
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Code of Criminal Procedure regarding the Crime Victims
10 Restitution Act and the preservation of assets.
11 Highlighted Provisions:
12 This bill:
13 . amends the judicial process for preserving assets in a prosecution, when it appears
14 likely that the assets may otherwise be disposed of prior to conviction and an order
15 of restitution, by:
16 . removing the provision that limits an order preserving assets to 90 days; and
17 . allowing the court to base its finding of probable cause to take action to preserve
18 assets upon reliable hearsay.
19 Monies Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 77-38a-601, as enacted by Laws of Utah 2004, Chapter 160
26
27 Be it enacted by the Legislature of the state of Utah:

28 Section 1. Section 77-38a-601 is amended to read:
29 77-38a-601. Preservation of assets.
30 (1) [At] Prior to or at the time a criminal information, indictment charging a violation,
31 or a petition alleging delinquency is filed, or at any time during the prosecution of the case, a
32 prosecutor may, if in the prosecutor's best judgment there is a substantial likelihood that a
33 conviction will be obtained and restitution will be ordered in the case, petition the court to:
34 (a) enter a temporary restraining order [or], an injunction, or both;
35 (b) require the execution of a satisfactory performance bond[,]; or
36 (c) take any other action to preserve the availability of property which may be
37 necessary to satisfy an anticipated restitution order [if, in the prosecutor's best judgement, there
38 is a substantial likelihood that a conviction will be obtained and restitution will be ordered].
39 [(a) Upon receiving a petition from a prosecutor under this Subsection (1), and after
40 notice and a hearing, the court may enter a restraining order or injunction, require the execution
41 of a satisfactory performance bond, or take any action necessary to preserve the availability of
42 property which may be necessary to satisfy an anticipated restitution order.]
43 [(b) An order entered under this Subsection (1) is effective for up to 90 days, unless
44 extended by the court for good cause shown.]
45 [(2) Prior to the filing of a criminal information, indictment charging a violation, or a
46 petition alleging delinquency, a prosecutor may petition the court to enter a restraining order or
47 injunction, require the execution of a satisfactory performance bond, or take any other action to
48 preserve the availability of property which may be necessary to satisfy an anticipated restitution
49 order if, in the prosecutor's best judgement, there is a substantial likelihood that a conviction
50 will be obtained and restitution will be ordered.]
51 (2) (a) Upon receiving a request from a prosecutor under [this] Subsection [(2),] (1),
52 and after notice to persons appearing to have an interest in the property and affording them an
53 opportunity to be heard, the court may [enter a restraining order or injunction, require the
54 execution of a satisfactory performance bond, or take any action necessary to preserve the
55 availability of property which may be necessary to satisfy an anticipated restitution order after
56 notice to persons appearing to have an interest in the property and affording them an
57 opportunity to be heard,] take action as requested by the prosecutor if the court determines
58 [that]:

59 (i) there is probable cause to believe that a crime has been committed and that the
60 defendant committed it, and that failure to enter the order will likely result in the property
61 being sold, distributed, exhibited, destroyed, or removed from the jurisdiction of the court, or
62 otherwise be made unavailable for restitution; and
63 (ii) the need to preserve the availability of the property or prevent its sale, distribution,
64 exhibition, destruction, or removal through the entry of the requested order outweighs the
65 hardship on any party against whom the order is to be entered.
66 (b) In a hearing conducted pursuant to this section, a court may consider reliable
67 hearsay as defined in Utah Rules of Evidence, Rule 1102.
68 [(b)] (c) An order for an injunction entered under this [Subsection (2)] section is
69 effective for the period of time given in the order.
70 (3) (a) Upon receiving a request for a temporary restraining order from a prosecutor
71 under [Subsection (2), and notwithstanding Subsection (2)(a)(i)] this section, a court may enter
72 a temporary restraining order against an owner with respect to specific property without notice
73 or opportunity for a hearing if:
74 (i) the prosecutor demonstrates that there is a substantial likelihood that the property
75 with respect to which the order is sought appears to be necessary to satisfy an anticipated
76 restitution order under this chapter; and
77 (ii) [that] provision of notice would jeopardize the availability of the property to satisfy
78 any restitution order or judgment.
79 (b) The temporary order in this Subsection (3) expires not more than ten days after it is
80 entered unless extended for good cause shown or the party against whom it is entered consents
81 to an extension.
82 (4) A hearing concerning an order entered under this section shall be held as soon as
83 possible, and prior to the expiration of the temporary order.




Legislative Review Note
as of 12-23-08 6:59 AM

Office of Legislative Research and General Counsel