1     
PROBATION AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Mike Schultz

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions of the criminal procedure code.
10     Highlighted Provisions:
11          This bill:
12          ▸     provides for notification to certain parties when termination of probation is
13     requested by the department.
14     Money Appropriated in this Bill:
15          None
16     Other Special Clauses:
17          None
18     Utah Code Sections Affected:
19     AMENDS:
20          77-18-1, as last amended by Laws of Utah 2014, Chapters 120 and 170
21     

22     Be it enacted by the Legislature of the state of Utah:
23          Section 1. Section 77-18-1 is amended to read:
24          77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation --
25     Supervision -- Presentence investigation -- Standards -- Confidentiality -- Terms and
26     conditions -- Termination, revocation, modification, or extension -- Hearings -- Electronic
27     monitoring.
28          (1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea
29     in abeyance agreement, the court may hold the plea in abeyance as provided in Title 77,

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

58     appropriate.
59          (e) The Judicial Council and the department shall annually prepare an impact report
60     and submit it to the appropriate legislative appropriations subcommittee.
61          (4) Notwithstanding other provisions of law, the department is not required to
62     supervise the probation of persons convicted of class B or C misdemeanors or infractions or to
63     conduct presentence investigation reports on class C misdemeanors or infractions. However,
64     the department may supervise the probation of class B misdemeanants in accordance with
65     department standards.
66          (5) (a) Before the imposition of any sentence, the court may, with the concurrence of
67     the defendant, continue the date for the imposition of sentence for a reasonable period of time
68     for the purpose of obtaining a presentence investigation report from the department or
69     information from other sources about the defendant.
70          (b) The presentence investigation report shall include:
71          (i) a victim impact statement according to guidelines set in Section 77-38a-203
72     describing the effect of the crime on the victim and the victim's family;
73          (ii) a specific statement of pecuniary damages, accompanied by a recommendation
74     from the department regarding the payment of restitution with interest by the defendant in
75     accordance with Title 77, Chapter 38a, Crime Victims Restitution Act;
76          (iii) findings from any screening and any assessment of the offender conducted under
77     Section 77-18-1.1;
78          (iv) recommendations for treatment of the offender; and
79          (v) the number of days since the commission of the offense that the offender has spent
80     in the custody of the jail and the number of days, if any, the offender was released to a
81     supervised release or alternative incarceration program under Section 17-22-5.5.
82          (c) 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) 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;
111          (vi) serve a term of home confinement, which may include the use of electronic
112     monitoring;
113          (vii) participate in compensatory service restitution programs, including the

114     compensatory service program provided in Section 76-6-107.1;
115          (viii) pay for the costs of investigation, probation, and treatment services;
116          (ix) make restitution or reparation to the victim or victims with interest in accordance
117     with Title 77, Chapter 38a, Crime Victims Restitution Act; and
118          (x) comply with other terms and conditions the court considers appropriate; and
119          (b) if convicted on or after May 5, 1997:
120          (i) complete high school classwork and obtain a high school graduation diploma, a
121     GED certificate, or a vocational certificate at the defendant's own expense if the defendant has
122     not received the diploma, GED certificate, or vocational certificate prior to being placed on
123     probation; or
124          (ii) provide documentation of the inability to obtain one of the items listed in
125     Subsection (8)(b)(i) because of:
126          (A) a diagnosed learning disability; or
127          (B) other justified cause.
128          (9) The department shall collect and disburse the account receivable as defined by
129     Section 76-3-201.1, with interest and any other costs assessed under Section 64-13-21 during:
130          (a) the parole period and any extension of that period in accordance with Subsection
131     77-27-6(4); and
132          (b) the probation period in cases for which the court orders supervised probation and
133     any extension of that period by the department in accordance with Subsection (10).
134          (10) (a) (i) Probation may be terminated at any time at the discretion of the court or
135     upon completion without violation of 36 months probation in felony or class A misdemeanor
136     cases, or 12 months in cases of class B or C misdemeanors or infractions.
137          (ii) (A) If, upon expiration or termination of the probation period under Subsection
138     (10)(a)(i), there remains an unpaid balance upon the account receivable as defined in Section
139     76-3-201.1, the court may retain jurisdiction of the case and continue the defendant on bench
140     probation for the limited purpose of enforcing the payment of the account receivable. If the
141     court retains jurisdiction for this limited purpose, the court may order the defendant to pay to

142     the court the costs associated with continued probation under this Subsection (10).
143          (B) In accordance with Section 77-18-6, the court shall record in the registry of civil
144     judgments any unpaid balance not already recorded and immediately transfer responsibility to
145     collect the account to the Office of State Debt Collection.
146          (iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its
147     own motion, the court may require the defendant to show cause why the defendant's failure to
148     pay should not be treated as contempt of court.
149          (b) (i) The department shall notify the sentencing court, the Office of State Debt
150     Collection, and the prosecuting attorney in writing in advance in all cases when termination of
151     supervised probation is being requested by the department or will occur by law.
152          (ii) The notification shall include a probation progress report and complete report of
153     details on outstanding accounts receivable.
154          (11) (a) (i) Any time served by a probationer outside of confinement after having been
155     charged with a probation violation and prior to a hearing to revoke probation does not
156     constitute service of time toward the total probation term unless the probationer is exonerated
157     at a hearing to revoke the probation.
158          (ii) Any time served in confinement awaiting a hearing or decision concerning
159     revocation of probation does not constitute service of time toward the total probation term
160     unless the probationer is exonerated at the hearing.
161          (b) The running of the probation period is tolled upon the filing of a violation report
162     with the court alleging a violation of the terms and conditions of probation or upon the issuance
163     of an order to show cause or warrant by the court.
164          (12) (a) (i) Probation may not be modified or extended except upon waiver of a hearing
165     by the probationer or upon a hearing and a finding in court that the probationer has violated the
166     conditions of probation.
167          (ii) Probation may not be revoked except upon a hearing in court and a finding that the
168     conditions of probation have been violated.
169          (b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to

170     constitute violation of the conditions of probation, the court that authorized probation shall
171     determine if the affidavit establishes probable cause to believe that revocation, modification, or
172     extension of probation is justified.
173          (ii) If the court determines there is probable cause, it shall cause to be served on the
174     defendant a warrant for the defendant's arrest or a copy of the affidavit and an order to show
175     cause why the defendant's probation should not be revoked, modified, or extended.
176          (c) (i) The order to show cause shall specify a time and place for the hearing and shall
177     be served upon the defendant at least five days prior to the hearing.
178          (ii) The defendant shall show good cause for a continuance.
179          (iii) The order to show cause shall inform the defendant of a right to be represented by
180     counsel at the hearing and to have counsel appointed if the defendant is indigent.
181          (iv) The order shall also inform the defendant of a right to present evidence.
182          (d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
183          (ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney
184     shall present evidence on the allegations.
185          (iii) The persons who have given adverse information on which the allegations are
186     based shall be presented as witnesses subject to questioning by the defendant unless the court
187     for good cause otherwise orders.
188          (iv) The defendant may call witnesses, appear and speak in the defendant's own behalf,
189     and present evidence.
190          (e) (i) After the hearing the court shall make findings of fact.
191          (ii) Upon a finding that the defendant violated the conditions of probation, the court
192     may order the probation revoked, modified, continued, or that the entire probation term
193     commence anew.
194          (iii) If probation is revoked, the defendant shall be sentenced or the sentence previously
195     imposed shall be executed.
196          (13) The court may order the defendant to commit himself or herself to the custody of
197     the Division of Substance Abuse and Mental Health for treatment at the Utah State Hospital as

198     a condition of probation or stay of sentence, only after the superintendent of the Utah State
199     Hospital or the superintendent's designee has certified to the court that:
200          (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
201          (b) treatment space at the hospital is available for the defendant; and
202          (c) persons described in Subsection 62A-15-610(2)(g) are receiving priority for
203     treatment over the defendants described in this Subsection (13).
204          (14) Presentence investigation reports are classified protected in accordance with Title
205     63G, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections
206     63G-2-403 and 63G-2-404, the State Records Committee may not order the disclosure of a
207     presentence investigation report. Except for disclosure at the time of sentencing pursuant to
208     this section, the department may disclose the presentence investigation only when:
209          (a) ordered by the court pursuant to Subsection 63G-2-202(7);
210          (b) requested by a law enforcement agency or other agency approved by the department
211     for purposes of supervision, confinement, and treatment of the offender;
212          (c) requested by the Board of Pardons and Parole;
213          (d) requested by the subject of the presentence investigation report or the subject's
214     authorized representative; or
215          (e) requested by the victim of the crime discussed in the presentence investigation
216     report or the victim's authorized representative, provided that the disclosure to the victim shall
217     include only information relating to statements or materials provided by the victim, to the
218     circumstances of the crime including statements by the defendant, or to the impact of the crime
219     on the victim or the victim's household.
220          (15) (a) The court shall consider home confinement as a condition of probation under
221     the supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5.
222          (b) The department shall establish procedures and standards for home confinement,
223     including electronic monitoring, for all individuals referred to the department in accordance
224     with Subsection (16).
225          (16) (a) If the court places the defendant on probation under this section, it may order

226     the defendant to participate in home confinement through the use of electronic monitoring as
227     described in this section until further order of the court.
228          (b) The electronic monitoring shall alert the department and the appropriate law
229     enforcement unit of the defendant's whereabouts.
230          (c) The electronic monitoring device shall be used under conditions which require:
231          (i) the defendant to wear an electronic monitoring device at all times; and
232          (ii) that a device be placed in the home of the defendant, so that the defendant's
233     compliance with the court's order may be monitored.
234          (d) If a court orders a defendant to participate in home confinement through electronic
235     monitoring as a condition of probation under this section, it shall:
236          (i) place the defendant on probation under the supervision of the Department of
237     Corrections;
238          (ii) order the department to place an electronic monitoring device on the defendant and
239     install electronic monitoring equipment in the residence of the defendant; and
240          (iii) order the defendant to pay the costs associated with home confinement to the
241     department or the program provider.
242          (e) The department shall pay the costs of home confinement through electronic
243     monitoring only for those persons who have been determined to be indigent by the court.
244          (f) The department may provide the electronic monitoring described in this section
245     either directly or by contract with a private provider.