1     
RESTITUTION FOR INCARCERATION COSTS

2     
AMENDMENTS

3     
2015 GENERAL SESSION

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STATE OF UTAH

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Chief Sponsor: Paul Ray

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Senate Sponsor: ____________

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8     LONG TITLE
9     General Description:
10          This bill modifies the Utah Criminal Code and the Crime Victims Restitution Act
11     regarding the payment of incarceration costs by defendants.
12     Highlighted Provisions:
13          This bill:
14          ▸     requires that the county sheriff provide written notice to a defendant of incarceration
15     costs assessed under current state law;
16          ▸     provides that a defendant who is subject to incarceration costs may request an
17     impecuniosity hearing for the court to determine if the costs should be reduced or
18     waived under current statutory standards; and
19          ▸     provides that incarceration costs are to be paid after victim restitution costs.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          76-3-201, as last amended by Laws of Utah 2013, Chapter 74
27          77-38a-404, as last amended by Laws of Utah 2011, Chapters 131 and 208

28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 76-3-201 is amended to read:
31          76-3-201. Definitions -- Sentences or combination of sentences allowed -- Civil
32     penalties.
33          (1) As used in this section:
34          (a) "Conviction" includes a:
35          (i) judgment of guilt; and
36          (ii) plea of guilty.
37          (b) "Criminal activities" means any offense of which the defendant is convicted or any
38     other criminal conduct for which the defendant admits responsibility to the sentencing court
39     with or without an admission of committing the criminal conduct.
40          (c) "Pecuniary damages" means all special damages, but not general damages, which a
41     person could recover against the defendant in a civil action arising out of the facts or events
42     constituting the defendant's criminal activities and includes the money equivalent of property
43     taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical
44     expenses.
45          (d) "Restitution" means:
46          (i) full, partial, or nominal payment for pecuniary damages to a victim[, and];
47          (ii) payment for expenses to a governmental entity for extradition or transportation
48     [and] under Subsection (5);
49          (iii) payment for the costs of the defendant's incarceration as provided in Subsection
50     (6);
51          (iv) payment for the costs of the defendant's medical care as provided in Subsection
52     (6); and
53          (v) restitution payments as further defined in Title 77, Chapter 38a, Crime Victims
54     Restitution Act.
55          (e) (i) "Victim" means any person or entity, including the Utah Office for Victims of
56     Crime, who the court determines has suffered pecuniary damages as a result of the defendant's
57     criminal activities.
58          (ii) "Victim" does not include any coparticipant in the defendant's criminal activities.

59          (2) Within the limits prescribed by this chapter, a court may sentence a person
60     convicted of an offense to any one of the following sentences or combination of them:
61          (a) to pay a fine;
62          (b) to removal or disqualification from public or private office;
63          (c) to probation unless otherwise specifically provided by law;
64          (d) to imprisonment;
65          (e) on or after April 27, 1992, to life in prison without parole; or
66          (f) to death.
67          (3) (a) This chapter does not deprive a court of authority conferred by law to:
68          (i) forfeit property;
69          (ii) dissolve a corporation;
70          (iii) suspend or cancel a license;
71          (iv) permit removal of a person from office;
72          (v) cite for contempt; or
73          (vi) impose any other civil penalty.
74          (b) A civil penalty may be included in a sentence.
75          (4) (a) When a person is convicted of criminal activity that has resulted in pecuniary
76     damages, in addition to any other sentence it may impose, the court shall order that the
77     defendant make restitution to the victims, or for conduct for which the defendant has agreed to
78     make restitution as part of a plea agreement.
79          (b) In determining whether restitution is appropriate, the court shall follow the criteria
80     and procedures as provided in Title 77, Chapter 38a, Crime Victims Restitution Act.
81          (c) In addition to any other sentence the court may impose, the court, pursuant to the
82     provisions of Sections 63M-7-503 and 77-38a-401, shall enter:
83          (i) a civil judgment for complete restitution for the full amount of expenses paid on
84     behalf of the victim by the Utah Office for Victims of Crime; and
85          (ii) an order of restitution for restitution payable to the Utah Office for Victims of
86     Crime in the same amount unless otherwise ordered by the court pursuant to Subsection (4)(d).
87          (d) In determining whether to order that the restitution required under Subsection (4)(c)
88     be reduced or that the defendant be exempted from the restitution, the court shall consider the
89     criteria under Subsections 77-38a-302(5)(c)(i) through (vi) and provide findings of its decision

90     on the record.
91          (5) (a) In addition to any other sentence the court may impose, and unless otherwise
92     ordered by the court, the defendant shall pay restitution of governmental transportation
93     expenses if the defendant was:
94          (i) transported pursuant to court order from one county to another within the state at
95     governmental expense to resolve pending criminal charges;
96          (ii) charged with a felony or a class A, B, or C misdemeanor; and
97          (iii) convicted of a crime.
98          (b) The court may not order the defendant to pay restitution of governmental
99     transportation expenses if any of the following apply:
100          (i) the defendant is charged with an infraction or on a subsequent failure to appear a
101     warrant is issued for an infraction; or
102          (ii) the defendant was not transported pursuant to a court order.
103          (c) (i) Restitution of governmental transportation expenses under Subsection (5)(a)(i)
104     shall be calculated according to the following schedule:
105          (A) $100 for up to 100 miles a defendant is transported;
106          (B) $200 for 100 up to 200 miles a defendant is transported; and
107          (C) $350 for 200 miles or more a defendant is transported.
108          (ii) The schedule of restitution under Subsection (5)(c)(i) applies to each defendant
109     transported regardless of the number of defendants actually transported in a single trip.
110          (d) If a defendant has been extradited to this state under Title 77, Chapter 30,
111     Extradition, to resolve pending criminal charges and is convicted of criminal activity in the
112     county to which he has been returned, the court may, in addition to any other sentence it may
113     impose, order that the defendant make restitution for costs expended by any governmental
114     entity for the extradition.
115          (6) (a) [In] Subject to Subsection (7), and in addition to any other sentence the court
116     may impose, [and unless otherwise ordered by the court pursuant to Subsection (6)(c),] the
117     defendant shall pay restitution to the county for the cost of incarceration and costs of medical
118     care provided to the defendant while in the county correctional facility before and after
119     sentencing if:
120          (i) the defendant is convicted of criminal activity that results in incarceration in the

121     county correctional facility; and
122          (ii) (A) the defendant is not a state prisoner housed in a county correctional facility
123     through a contract with the Department of Corrections; or
124          (B) the reimbursement does not duplicate the reimbursement provided under Section
125     64-13e-104 if the defendant is a state probationary inmate, as defined in Section 64-13e-102, or
126     a state parole inmate, as defined in Section 64-13e-102.
127          (b) (i) The costs of incarceration under Subsection (6)(a) are the amount determined by
128     the county correctional facility, but may not exceed the daily inmate incarceration costs and
129     medical and transportation costs for the county correctional facility.
130          (ii) The costs of incarceration under Subsection (6)(a) do not include expenses incurred
131     by the county correctional facility in providing reasonable accommodation for an inmate
132     qualifying as an individual with a disability as defined and covered by the federal Americans
133     with Disabilities Act of 1990, 42 U.S.C. Secs. 12101 through 12213, including medical and
134     mental health treatment for the inmate's disability.
135          [(c) In determining whether to order that the restitution required under this Subsection
136     (6) be reduced or that the defendant be exempted from the restitution, the court shall consider
137     the criteria under Subsections 77-38a-302(5)(c)(i) through (vi) and shall enter the reason for its
138     order on the record.]
139          [(d)] (c) If on appeal the defendant is found not guilty of the criminal activity under
140     Subsection (6)(a)(i) and that finding is final as defined in Section 76-1-304, the county shall
141     reimburse the defendant for restitution the defendant paid for costs of incarceration under
142     Subsection (6)(a).
143          (7) (a) When a defendant is subject to restitution for the cost of incarceration under
144     Subsection (6), the county sheriff shall, subsequent to the defendant's conviction, provide to the
145     defendant a written notification of the incarceration restitution amount due under Subsection
146     (6)(a).
147          (b) The notification shall also state:
148          (i) that the restitution for incarceration costs is established by statutory formula;
149          (ii) the daily inmate incarceration rate on which the total cost is based;
150          (iii) that the defendant may request a court hearing to consider the reduction or waiver
151     of the incarceration cost by submitting a claim of impecuniosity; and

152          (iv) the criteria the court may consider under Subsections 77-38a-302(5)(c)(i) through
153     (vi) in a hearing regarding the modification of the incarceration cost assessed.
154          (c) The court may not reduce or waive the incarceration restitution amount without
155     holding an impecuniosity hearing, if requested by an inmate under Subsection (7)(b)(iii).
156          (d) In determining whether to order that the restitution required under Subsection (6)
157     be reduced or that the defendant be exempted from the restitution, the court shall consider the
158     criteria under Subsections 77-38a-302(5)(c)(i) through (vi) and shall enter the reason for the
159     court's order on the record.
160          (8) Restitution for costs of incarceration shall be paid subject to the priorities listed in
161     Section 77-38-404.
162          (9) Restitution for the costs of incarceration may not be taken from an inmate's
163     commissary funds.
164          (10) If a county charges an inmate for the costs of incarceration as provided in
165     Subsection (6), the county may offer work opportunities from which the wages or hours
166     worked may be applied toward the restitution for incarceration costs.
167          Section 2. Section 77-38a-404 is amended to read:
168          77-38a-404. Priority.
169          (1) Restitution payments made pursuant to a court order shall be disbursed to victims
170     within 60 days of receipt from the defendant by the court or department provided:
171          (a) the victim has complied with Subsection 77-38a-203(1)(b);
172          (b) if the defendant has tendered a negotiable instrument, funds from the financial
173     institution are actually received; and
174          (c) the payment to the victim is at least $5, unless the payment is the final payment.
175          (2) If restitution to more than one person, agency, or entity is required at the same time,
176     the department shall establish the following priorities of payment, except as provided in
177     Subsection (4):
178          (a) the crime victim;
179          (b) the Utah Office for Victims of Crime;
180          (c) any other government agency which has provided reimbursement to the victim as a
181     result of the offender's criminal conduct;
182          (d) the person, entity, or governmental agency that has offered and paid a reward under

183     Section 76-3-201.1 or 78A-6-117;
184          (e) any insurance company which has provided reimbursement to the victim as a result
185     of the offender's criminal conduct; and
186          (f) any county correctional facility to which the defendant is required to pay restitution
187     under [Subsection 76-3-201(6)] Subsections 76-3-201(6) and (7).
188          (3) Restitution ordered under Subsection (2)(f) is paid after criminal fines and
189     surcharges are paid.
190          (4) If the offender is required under Section 53-10-404 to reimburse the department for
191     the cost of obtaining the offender's DNA specimen, this reimbursement is the next priority after
192     restitution to the crime victim under Subsection (2)(a).
193          (5) All money collected for court-ordered obligations from offenders by the department
194     will be applied:
195          (a) first, to victim restitution, except the current and past due amount of $30 per month
196     required to be collected by the department under Section 64-13-21, if applicable; [and]
197          (b) second, if applicable, to the cost of obtaining a DNA specimen under Subsection
198     (4)[.]; and
199          (c) third, to any county correctional facility to which the defendant is required to pay
200     restitution under Subsections 76-3-201(6) and (7).
201          (6) Restitution owed to more than one victim shall be disbursed to each victim
202     according to the percentage of each victim's share of the total restitution order.






Legislative Review Note
     as of 3-3-15 12:47 PM


Office of Legislative Research and General Counsel