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H.B. 92 Enrolled





Chief Sponsor: Gage Froerer

Senate Sponsor: Todd Weiler

             7      LONG TITLE
             8      General Description:
             9          This bill modifies the Judicial Code regarding postconviction determinations of factual
             10      innocence.
             11      Highlighted Provisions:
             12          This bill:
             13          .    modifies provisions regarding financial assistance to a person found to have been
             14      wrongfully convicted, to provide that if the person dies, the financial assistance
             15      payment shall be paid to the person's surviving spouse if the spouse was married to
             16      the person from the time of the conviction until the person's death; and
             17          .    provides that if the spouse has caused the death of the person by the commission of
             18      a disqualifying homicide, the survivor forfeits all right to payments.
             19      Money Appropriated in this Bill:
             20          None
             21      Other Special Clauses:
             22          None
             23      Utah Code Sections Affected:
             24      AMENDS:
             25          78B-9-402, as last amended by Laws of Utah 2012, Chapter 220
             27      Be it enacted by the Legislature of the state of Utah:
             28          Section 1. Section 78B-9-402 is amended to read:
             29           78B-9-402. Petition for determination of factual innocence -- Sufficient

             30      allegations -- Notification of victim -- Payment to surviving spouse.
             31          (1) A person who has been convicted of a felony offense may petition the district court
             32      in the county in which the person was convicted for a hearing to establish that the person is
             33      factually innocent of the crime or crimes of which the person was convicted.
             34          (2) (a) The petition shall contain an assertion of factual innocence under oath by the
             35      petitioner[,] and shall aver, with supporting affidavits or other credible documents, that:
             36          (i) newly discovered material evidence exists that, if credible, establishes that the
             37      petitioner is factually innocent;
             38          (ii) the specific evidence identified by the petitioner in the petition establishes
             39      innocence;
             40          (iii) the material evidence is not merely cumulative of evidence that was known;
             41          (iv) the material evidence is not merely impeachment evidence; and
             42          (v) viewed with all the other evidence, the newly discovered evidence demonstrates
             43      that the petitioner is factually innocent.
             44          (b) The court shall review the petition in accordance with the procedures in Subsection
             45      (9)(b), and make a finding that the petition has satisfied the requirements of Subsection (2)(a).
             46      If the court finds the petition does not meet all the requirements of Subsection (2)(a), it shall
             47      dismiss the petition without prejudice and send notice of the dismissal to the petitioner and the
             48      attorney general.
             49          (3) (a) The petition shall also contain an averment that:
             50          (i) neither the petitioner nor the petitioner's counsel knew of the evidence at the time of
             51      trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
             52      postconviction motion, and the evidence could not have been discovered by the petitioner or
             53      the petitioner's counsel through the exercise of reasonable diligence; or
             54          (ii) a court has found ineffective assistance of counsel for failing to exercise reasonable
             55      diligence in uncovering the evidence.
             56          (b) Upon entry of a finding that the petition is sufficient under Subsection (2)(a), the
             57      court shall then review the petition to determine if Subsection (3)(a) has been satisfied. If the

             58      court finds that the requirements of Subsection (3)(a) have not been satisfied, it may dismiss
             59      the petition without prejudice and give notice to the petitioner and the attorney general of the
             60      dismissal, or the court may waive the requirements of Subsection (3)(a) if the court finds the
             61      petition should proceed to hearing based upon the strength of the petition, and that there is
             62      other evidence that could have been discovered through the exercise of reasonable diligence by
             63      the petitioner or the petitioner's counsel at trial, and the other evidence:
             64          (i) was not discovered by the petitioner or the petitioner's counsel;
             65          (ii) is material upon the issue of factual innocence; and
             66          (iii) has never been presented to a court.
             67          (4) If the conviction for which the petitioner asserts factual innocence was based upon
             68      a plea of guilty, the petition shall contain the specific nature and content of the evidence that
             69      establishes factual innocence. The court shall review the evidence and may dismiss the petition
             70      at any time in the course of the proceedings, if the court finds that the evidence of factual
             71      innocence relies solely upon the recantation of testimony or prior statements made by a witness
             72      against the petitioner, and the recantation appears to the court to be equivocal or selfserving.
             73          (5) A person who has already obtained postconviction relief that vacated or reversed
             74      the person's conviction or sentence may also file a petition under this part in the same manner
             75      and form as described above, if no retrial or appeal regarding this offense is pending.
             76          (6) If some or all of the evidence alleged to be exonerating is biological evidence
             77      subject to DNA testing, the petitioner shall seek DNA testing pursuant to Section 78B-9-301 .
             78          (7) Except as provided in Subsection (9), the petition and all subsequent proceedings
             79      shall be in compliance with and governed by Rule 65C, Utah Rules of Civil Procedure, and
             80      shall include the underlying criminal case number.
             81          (8) After a petition is filed under this section, prosecutors, law enforcement officers,
             82      and crime laboratory personnel shall cooperate in preserving evidence and in determining the
             83      sufficiency of the chain of custody of the evidence which is the subject of the petition.
             84          (9) (a) A person who files a petition under this section shall serve notice of the petition
             85      and a copy of the petition upon the office of the prosecutor who obtained the conviction and

             86      upon the Utah attorney general.
             87          (b) The assigned judge shall conduct an initial review of the petition. If it is apparent
             88      to the court that the petitioner is either merely relitigating facts, issues, or evidence presented in
             89      previous proceedings or presenting issues that appear frivolous or speculative on their face, the
             90      court shall dismiss the petition, state the basis for the dismissal, and serve notice of dismissal
             91      upon the petitioner and the attorney general. If, upon completion of the initial review, the court
             92      does not dismiss the petition, it shall order the attorney general to file a response to the petition.
             93      The attorney general shall, within 30 days after receipt of the court's order, or within any
             94      additional period of time the court allows, answer or otherwise respond to all proceedings
             95      initiated under this part.
             96          (c) After the time for response by the attorney general under Subsection (9)(b) has
             97      passed, the court shall order a hearing if it finds the petition meets the requirements of
             98      Subsections (2) and (3) and finds there is a bona fide and compelling issue of factual innocence
             99      regarding the charges of which the petitioner was convicted. No bona fide and compelling
             100      issue of factual innocence exists if the petitioner is merely relitigating facts, issues, or evidence
             101      presented in a previous proceeding or if the petitioner is unable to identify with sufficient
             102      specificity the nature and reliability of the newly discovered evidence that establishes the
             103      petitioner's factual innocence.
             104          (d) If the parties stipulate that the evidence establishes that the petitioner is factually
             105      innocent, the court may find the petitioner is factually innocent without holding a hearing. If
             106      the state will not stipulate that the evidence establishes that the petitioner is factually innocent,
             107      no determination of factual innocence may be made by the court without first holding a hearing
             108      under this part.
             109          (10) The court may not grant a petition for a hearing under this part during the period
             110      in which criminal proceedings in the matter are pending before any trial or appellate court,
             111      unless stipulated to by the parties.
             112          (11) Any victim of a crime that is the subject of a petition under this part, and who has
             113      elected to receive notice under Section 77-38-3 , shall be notified by the state's attorney of any

             114      hearing regarding the petition.
             115          (12) A petition to determine factual innocence under this part, or Part 3, Postconviction
             116      Testing of DNA, shall be filed separately from any petition for postconviction relief under Part
             117      1, General Provisions. Separate petitions may be filed simultaneously in the same court.
             118          (13) The procedures governing the filing and adjudication of a petition to determine
             119      factual innocence apply to all petitions currently filed or pending in the district court and any
             120      new petitions filed on or after June 1, 2012.
             121          (14) (a) As used in this Subsection (14) and in Subsection (15):
             122          (i) "Married" means the legal marital relationship established between a man and a
             123      woman and as recognized by the laws of this state; and
             124          (ii) "Spouse" means a person married to the petitioner at the time the petitioner was
             125      found guilty of the offense regarding which a petition is filed and who has since then been
             126      continuously married to the petitioner until the petitioner's death.
             127          (b) A claim for determination of factual innocence under this part is not extinguished
             128      upon the death of the petitioner. [The assistance payment provisions of Section 78B-9-405
             129      may not apply, and financial payments may not be made, if]
             130          (c) If any payments are already being made to the petitioner under this part at the time
             131      of the death of the petitioner, or if the finding of factual innocence occurs after the death of the
             132      petitioner[. In addition, any payments already being made under Section 78B-9-405 shall cease
             133      upon the death of the petitioner.], the payments due under Section 78B-9-405 shall be paid
             134      according to the schedule under Section 78B-9-405 to the petitioner's surviving spouse.
             135      Payments cease upon the death of the spouse.
             136          (15) The spouse under Subsection (14) forfeits all rights to receive any payment under
             137      this part if the spouse is charged with a homicide established by a preponderance of the
             138      evidence that meets the elements of any felony homicide offense in Title 76, Chapter 5,
             139      Offenses Against the Person, except automobile homicide, applying the same principles of
             140      culpability and defenses as in Title 76, Utah Criminal Code, including Title 76, Chapter 2,
             141      Principles of Criminal Responsibility.


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