H.B. 136

1

JAIL CONTRACTING AND REIMBURSEMENT
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Michael E. Noel
5 Senate Sponsor: Jon J. Greiner
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Code of Criminal Procedure regarding jail as a term of probation.
10 Highlighted Provisions:
11 This bill:
12 . provides that when an offender is sentenced to serve time in a county jail, as a
13 condition of felony probation, the jail provisions shall be arranged for by contract
14 between the Department of Corrections and the county jail.
15 Monies Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 None
19 Utah Code Sections Affected:
20 AMENDS:
21 77-18-1, as last amended by Laws of Utah 2009, Chapter 81
22
23 Be it enacted by the Legislature of the state of Utah:
24 Section 1. Section 77-18-1 is amended to read:
25 77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation --
26 Supervision -- Presentence investigation -- Standards -- Confidentiality -- Terms and
27 conditions -- Termination, revocation, modification, or extension -- Hearings -- Electronic

28 monitoring.
29 (1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea
30 in abeyance agreement, the court may hold the plea in abeyance as provided in Title 77,
31 Chapter 2a, Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
32 (2) (a) On a plea of guilty, guilty and mentally ill, no contest, or conviction of any
33 crime or offense, the court may, after imposing sentence, suspend the execution of the sentence
34 and place the defendant on probation. The court may place the defendant:
35 (i) on probation under the supervision of the Department of Corrections except in cases
36 of class C misdemeanors or infractions;
37 (ii) on probation with an agency of local government or with a private organization; or
38 (iii) on bench probation under the jurisdiction of the sentencing court.
39 (b) (i) The legal custody of all probationers under the supervision of the department is
40 with the department.
41 (ii) The legal custody of all probationers under the jurisdiction of the sentencing court
42 is vested as ordered by the court.
43 (iii) The court has continuing jurisdiction over all probationers.
44 (3) (a) The department shall establish supervision and presentence investigation
45 standards for all individuals referred to the department. These standards shall be based on:
46 (i) the type of offense;
47 (ii) the demand for services;
48 (iii) the availability of agency resources;
49 (iv) the public safety; and
50 (v) other criteria established by the department to determine what level of services
51 shall be provided.
52 (b) Proposed supervision and investigation standards shall be submitted to the Judicial
53 Council and the Board of Pardons and Parole on an annual basis for review and comment prior
54 to adoption by the department.
55 (c) The Judicial Council and the department shall establish procedures to implement
56 the supervision and investigation standards.
57 (d) The Judicial Council and the department shall annually consider modifications to
58 the standards based upon criteria in Subsection (3)(a) and other criteria as they consider

59 appropriate.
60 (e) The Judicial Council and the department shall annually prepare an impact report
61 and submit it to the appropriate legislative appropriations subcommittee.
62 (4) Notwithstanding other provisions of law, the department is not required to
63 supervise the probation of persons convicted of class B or C misdemeanors or infractions or to
64 conduct presentence investigation reports on class C misdemeanors or infractions. However,
65 the department may supervise the probation of class B misdemeanants in accordance with
66 department standards.
67 (5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of
68 the defendant, continue the date for the imposition of sentence for a reasonable period of time
69 for the purpose of obtaining a presentence investigation report from the department or
70 information from other sources about the defendant.
71 (b) The presentence investigation report shall include a victim impact statement
72 according to guidelines set in Section 77-38a-203 describing the effect of the crime on the
73 victim and the victim's family.
74 (c) The presentence investigation report shall include a specific statement of pecuniary
75 damages, accompanied by a recommendation from the department regarding the payment of
76 restitution with interest by the defendant in accordance with Title 77, Chapter 38a, Crime
77 Victims Restitution Act.
78 (d) The presentence investigation report shall include:
79 (i) findings from any screening and any assessment of the offender conducted under
80 Section 77-18-1.1 ; and
81 (ii) recommendations for treatment of the offender.
82 (e) The contents of the presentence investigation report are protected and are not
83 available except by court order for purposes of sentencing as provided by rule of the Judicial
84 Council or for use by the department.
85 (6) (a) The department shall provide the presentence investigation report to the
86 defendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the
87 court for review, three working days prior to sentencing. Any alleged inaccuracies in the
88 presentence investigation report, which have not been resolved by the parties and the
89 department prior to sentencing, shall be brought to the attention of the sentencing judge, and

90 the judge may grant an additional 10 working days to resolve the alleged inaccuracies of the
91 report with the department. If after 10 working days the inaccuracies cannot be resolved, the
92 court shall make a determination of relevance and accuracy on the record.
93 (b) If a party fails to challenge the accuracy of the presentence investigation report at
94 the time of sentencing, that matter shall be considered to be waived.
95 (7) At the time of sentence, the court shall receive any testimony, evidence, or
96 information the defendant or the prosecuting attorney desires to present concerning the
97 appropriate sentence. This testimony, evidence, or information shall be presented in open court
98 on record and in the presence of the defendant.
99 (8) While on probation, and as a condition of probation, the court may require that the
100 defendant:
101 (a) perform any or all of the following:
102 (i) pay, in one or several sums, any fine imposed at the time of being placed on
103 probation;
104 (ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
105 (iii) provide for the support of others for whose support the defendant is legally liable;
106 (iv) participate in available treatment programs, including any treatment program in
107 which the defendant is currently participating, if the program is acceptable to the court;
108 (v) (A) serve a period of time, not to exceed one year, in a county jail designated by the
109 department, after considering any recommendation by the court as to which jail the court finds
110 most appropriate; and
111 (B) if the defendant is serving the sentence under Subsection (8)(a)(v)(A) for a felony
112 conviction, the county jail shall be arranged for by contract between the department and the
113 county jail;
114 (vi) serve a term of home confinement, which may include the use of electronic
115 monitoring;
116 (vii) participate in compensatory service restitution programs, including the
117 compensatory service program provided in Section 76-6-107.1 ;
118 (viii) pay for the costs of investigation, probation, and treatment services;
119 (ix) make restitution or reparation to the victim or victims with interest in accordance
120 with Title 77, Chapter 38a, Crime Victims Restitution Act; and

121 (x) comply with other terms and conditions the court considers appropriate; and
122 (b) if convicted on or after May 5, 1997:
123 (i) complete high school classwork and obtain a high school graduation diploma, a
124 GED certificate, or a vocational certificate at the defendant's own expense if the defendant has
125 not received the diploma, GED certificate, or vocational certificate prior to being placed on
126 probation; or
127 (ii) provide documentation of the inability to obtain one of the items listed in
128 Subsection (8)(b)(i) because of:
129 (A) a diagnosed learning disability; or
130 (B) other justified cause.
131 (9) The department shall collect and disburse the account receivable as defined by
132 Section 76-3-201.1 , with interest and any other costs assessed under Section 64-13-21 during:
133 (a) the parole period and any extension of that period in accordance with Subsection
134 77-27-6 (4); and
135 (b) the probation period in cases for which the court orders supervised probation and
136 any extension of that period by the department in accordance with Subsection (10).
137 (10) (a) (i) Probation may be terminated at any time at the discretion of the court or
138 upon completion without violation of 36 months probation in felony or class A misdemeanor
139 cases, or 12 months in cases of class B or C misdemeanors or infractions.
140 (ii) (A) If, upon expiration or termination of the probation period under Subsection
141 (10)(a)(i), there remains an unpaid balance upon the account receivable as defined in Section
142 76-3-201.1 , the court may retain jurisdiction of the case and continue the defendant on bench
143 probation for the limited purpose of enforcing the payment of the account receivable.
144 (B) In accordance with Section 77-18-6 , the court shall record in the registry of civil
145 judgments any unpaid balance not already recorded and immediately transfer responsibility to
146 collect the account to the Office of State Debt Collection.
147 (iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its
148 own motion, the court may require the defendant to show cause why the defendant's failure to
149 pay should not be treated as contempt of court.
150 (b) (i) The department shall notify the sentencing court, the Office of State Debt
151 Collection, and the prosecuting attorney in writing in advance in all cases when termination of

152 supervised probation will occur by law.
153 (ii) The notification shall include a probation progress report and complete report of
154 details on outstanding accounts receivable.
155 (11) (a) (i) Any time served by a probationer outside of confinement after having been
156 charged with a probation violation and prior to a hearing to revoke probation does not
157 constitute service of time toward the total probation term unless the probationer is exonerated
158 at a hearing to revoke the probation.
159 (ii) Any time served in confinement awaiting a hearing or decision concerning
160 revocation of probation does not constitute service of time toward the total probation term
161 unless the probationer is exonerated at the hearing.
162 (b) The running of the probation period is tolled upon the filing of a violation report
163 with the court alleging a violation of the terms and conditions of probation or upon the issuance
164 of an order to show cause or warrant by the court.
165 (12) (a) (i) Probation may not be modified or extended except upon waiver of a hearing
166 by the probationer or upon a hearing and a finding in court that the probationer has violated the
167 conditions of probation.
168 (ii) Probation may not be revoked except upon a hearing in court and a finding that the
169 conditions of probation have been violated.
170 (b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to
171 constitute violation of the conditions of probation, the court that authorized probation shall
172 determine if the affidavit establishes probable cause to believe that revocation, modification, or
173 extension of probation is justified.
174 (ii) If the court determines there is probable cause, it shall cause to be served on the
175 defendant a warrant for the defendant's arrest or a copy of the affidavit and an order to show
176 cause why the defendant's probation should not be revoked, modified, or extended.
177 (c) (i) The order to show cause shall specify a time and place for the hearing and shall
178 be served upon the defendant at least five days prior to the hearing.
179 (ii) The defendant shall show good cause for a continuance.
180 (iii) The order to show cause shall inform the defendant of a right to be represented by
181 counsel at the hearing and to have counsel appointed if the defendant is indigent.
182 (iv) The order shall also inform the defendant of a right to present evidence.

183 (d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
184 (ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney
185 shall present evidence on the allegations.
186 (iii) The persons who have given adverse information on which the allegations are
187 based shall be presented as witnesses subject to questioning by the defendant unless the court
188 for good cause otherwise orders.
189 (iv) The defendant may call witnesses, appear and speak in the defendant's own behalf,
190 and present evidence.
191 (e) (i) After the hearing the court shall make findings of fact.
192 (ii) Upon a finding that the defendant violated the conditions of probation, the court
193 may order the probation revoked, modified, continued, or that the entire probation term
194 commence anew.
195 (iii) If probation is revoked, the defendant shall be sentenced or the sentence previously
196 imposed shall be executed.
197 (13) The court may order the defendant to commit himself to the custody of the
198 Division of Substance Abuse and Mental Health for treatment at the Utah State Hospital as a
199 condition of probation or stay of sentence, only after the superintendent of the Utah State
200 Hospital or the superintendent's designee has certified to the court that:
201 (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
202 (b) treatment space at the hospital is available for the defendant; and
203 (c) persons described in Subsection 62A-15-610 (2)(g) are receiving priority for
204 treatment over the defendants described in this Subsection (13).
205 (14) Presentence investigation reports are classified protected in accordance with Title
206 63G, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections
207 63G-2-403 and 63G-2-404 , the State Records Committee may not order the disclosure of a
208 presentence investigation report. Except for disclosure at the time of sentencing pursuant to
209 this section, the department may disclose the presentence investigation only when:
210 (a) ordered by the court pursuant to Subsection 63G-2-202 (7);
211 (b) requested by a law enforcement agency or other agency approved by the department
212 for purposes of supervision, confinement, and treatment of the offender;
213 (c) requested by the Board of Pardons and Parole;

214 (d) requested by the subject of the presentence investigation report or the subject's
215 authorized representative; or
216 (e) requested by the victim of the crime discussed in the presentence investigation
217 report or the victim's authorized representative, provided that the disclosure to the victim shall
218 include only information relating to statements or materials provided by the victim, to the
219 circumstances of the crime including statements by the defendant, or to the impact of the crime
220 on the victim or the victim's household.
221 (15) (a) The court shall consider home confinement as a condition of probation under
222 the supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5 .
223 (b) The department shall establish procedures and standards for home confinement,
224 including electronic monitoring, for all individuals referred to the department in accordance
225 with Subsection (16).
226 (16) (a) If the court places the defendant on probation under this section, it may order
227 the defendant to participate in home confinement through the use of electronic monitoring as
228 described in this section until further order of the court.
229 (b) The electronic monitoring shall alert the department and the appropriate law
230 enforcement unit of the defendant's whereabouts.
231 (c) The electronic monitoring device shall be used under conditions which require:
232 (i) the defendant to wear an electronic monitoring device at all times; and
233 (ii) that a device be placed in the home of the defendant, so that the defendant's
234 compliance with the court's order may be monitored.
235 (d) If a court orders a defendant to participate in home confinement through electronic
236 monitoring as a condition of probation under this section, it shall:
237 (i) place the defendant on probation under the supervision of the Department of
238 Corrections;
239 (ii) order the department to place an electronic monitoring device on the defendant and
240 install electronic monitoring equipment in the residence of the defendant; and
241 (iii) order the defendant to pay the costs associated with home confinement to the
242 department or the program provider.
243 (e) The department shall pay the costs of home confinement through electronic
244 monitoring only for those persons who have been determined to be indigent by the court.

245 (f) The department may provide the electronic monitoring described in this section
246 either directly or by contract with a private provider.




Legislative Review Note
as of 1-29-10 4:46 PM

Office of Legislative Research and General Counsel