H.B. 404 Crime Victim Restitution Amendments

Bill Sponsor:

Rep. Wilson, Brad R.
Floor Sponsor:

Sen. Hillyard, Lyle W.
  • Drafting Attorney: Esther Chelsea-McCarty
  • Fiscal Analyst: Gary R. Syphus




  • Information
    • Last Action: 23 Mar 2016, Governor Signed
    • Last Location: Lieutenant Governor's office for filing
    • Effective Date: 10 May 2016
    • Session Law Chapter: 223


H.B. 404

1     
CRIME VICTIM RESTITUTION AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brad R. Wilson

5     
Senate Sponsor: Lyle W. Hillyard

6     

7     LONG TITLE
8     General Description:
9          This bill makes changes in the composition of restitution orders and the priority for
10     distribution of restitution payments.
11     Highlighted Provisions:
12          This bill:
13          ▸     includes reasonable expenses for participation in the adjudicative process as
14     pecuniary damages; and
15          ▸     makes technical corrections.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          77-27-5, as last amended by Laws of Utah 2010, Chapter 110
23          77-27-6, as last amended by Laws of Utah 2005, Chapter 96
24          77-38-3, as last amended by Laws of Utah 2013, Chapters 196 and 445
25          77-38a-102, as last amended by Laws of Utah 2015, Chapter 147
26          77-38a-302, as last amended by Laws of Utah 2013, Chapter 74
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 77-27-5 is amended to read:

30          77-27-5. Board of Pardons and Parole authority.
31          (1) (a) The Board of Pardons and Parole shall determine by majority decision when and
32     under what conditions, subject to this chapter and other laws of the state, persons committed to
33     serve sentences in class A misdemeanor cases at penal or correctional facilities which are under
34     the jurisdiction of the Department of Corrections, and all felony cases except treason or
35     impeachment or as otherwise limited by law, may be released upon parole, pardoned, ordered
36     to pay restitution, or have their fines, forfeitures, or restitution remitted, or their sentences
37     commuted or terminated.
38          (b) The board may sit together or in panels to conduct hearings. The chair shall
39     appoint members to the panels in any combination and in accordance with rules promulgated
40     by the board, except in hearings involving commutation and pardons. The chair may
41     participate on any panel and when doing so is chair of the panel. The chair of the board may
42     designate the chair for any other panel.
43          (c) No restitution may be ordered, no fine, forfeiture, or restitution remitted, no parole,
44     pardon, or commutation granted or sentence terminated, except after a full hearing before the
45     board or the board's appointed examiner in open session. Any action taken under this
46     subsection other than by a majority of the board shall be affirmed by a majority of the board.
47          (d) A commutation or pardon may be granted only after a full hearing before the board.
48          (e) The board may determine restitution as provided in Section 77-27-6 and Subsection
49     77-38a-302(5)(d)[(ii)](iii)(A).
50          (2) (a) In the case of original parole grant hearings, rehearings, and parole revocation
51     hearings, timely prior notice of the time and location of the hearing shall be given to the
52     defendant, the county or district attorney's office responsible for prosecution of the case, the
53     sentencing court, law enforcement officials responsible for the defendant's arrest and
54     conviction, and whenever possible, the victim or the victim's family.
55          (b) Notice to the victim, his representative, or his family shall include information
56     provided in Section 77-27-9.5, and any related rules made by the board under that section.
57     This information shall be provided in terms that are reasonable for the lay person to

58     understand.
59          (3) Decisions of the board in cases involving paroles, pardons, commutations or
60     terminations of sentence, restitution, or remission of fines or forfeitures are final and are not
61     subject to judicial review. Nothing in this section prevents the obtaining or enforcement of a
62     civil judgment, including restitution as provided in Section 77-27-6.
63          (4) This chapter may not be construed as a denial of or limitation of the governor's
64     power to grant respite or reprieves in all cases of convictions for offenses against the state,
65     except treason or conviction on impeachment. However, respites or reprieves may not extend
66     beyond the next session of the Board of Pardons and Parole and the board, at that session, shall
67     continue or terminate the respite or reprieve, or it may commute the punishment, or pardon the
68     offense as provided. In the case of conviction for treason, the governor may suspend execution
69     of the sentence until the case is reported to the Legislature at its next session. The Legislature
70     shall then either pardon or commute the sentence, or direct its execution.
71          (5) In determining when, where, and under what conditions offenders serving sentences
72     may be paroled, pardoned, have restitution ordered, or have their fines or forfeitures remitted,
73     or their sentences commuted or terminated, the board shall consider whether the persons have
74     made or are prepared to make restitution as ascertained in accordance with the standards and
75     procedures of Section 77-38a-302, as a condition of any parole, pardon, remission of fines or
76     forfeitures, or commutation or termination of sentence.
77          (6) In determining whether parole may be terminated, the board shall consider the
78     offense committed by the parolee, the parole period as provided in Section 76-3-202, and in
79     accordance with Section 77-27-13.
80          Section 2. Section 77-27-6 is amended to read:
81          77-27-6. Payment of restitution.
82          (1) When the Board of Pardons and Parole orders the release on parole of an inmate
83     who has been sentenced to make restitution pursuant to Title 77, Chapter 38a, Crime Victims
84     Restitution Act, or whom the board has ordered to make restitution, and all or a portion of
85     restitution is still owing, the board may establish a schedule, including both complete and

86     court-ordered restitution, by which payment of the restitution shall be made, or order
87     compensatory or other service in lieu of or in combination with restitution. In fixing the
88     schedule and supervising the paroled offender's performance, the board may consider the
89     factors specified in Section 77-38a-302.
90          (2) (a) The board may impose any court order for restitution.
91          (b) In accordance with Subsection 77-38a-302(5)(d)[(ii)](iii)(A), the board may order
92     that a defendant make restitution for pecuniary damages that were not determined by the court,
93     unless the board applying the criteria as set forth in Section 77-38a-302 determines that
94     restitution is inappropriate.
95          (c) Except as provided in Subsection (2)(d), the board shall make all orders of
96     restitution within 60 days after the termination or expiration of the defendant's sentence.
97          (d) If, upon termination or expiration of a defendant's sentence, the board has
98     continuing jurisdiction over the defendant for a separate criminal offense, the board may defer
99     making an order of restitution until termination or expiration of all sentences for that
100     defendant.
101          (3) The board may also make orders of restitution for recovery of any or all costs
102     incurred by the Department of Corrections or the state or any other agency arising out of the
103     defendant's needs or conduct.
104          (4) If the defendant, upon termination or expiration of the sentence owes outstanding
105     fines, restitution, or other assessed costs, or if the board makes an order of restitution within 60
106     days after the termination or expiration of the defendant's sentence, the matter shall be referred
107     to the district court for civil collection remedies. The Board of Pardons and Parole shall
108     forward a restitution order to the sentencing court to be entered on the judgment docket. The
109     entry shall constitute a lien and is subject to the same rules as a judgment for money in a civil
110     judgment.
111          Section 3. Section 77-38-3 is amended to read:
112          77-38-3. Notification to victims -- Initial notice, election to receive subsequent
113     notices -- Form of notice -- Protected victim information -- Pretrial criminal no contact

114     order.
115          (1) Within seven days of the filing of felony criminal charges against a defendant, the
116     prosecuting agency shall provide an initial notice to reasonably identifiable and locatable
117     victims of the crime contained in the charges, except as otherwise provided in this chapter.
118          (2) The initial notice to the victim of a crime shall provide information about electing
119     to receive notice of subsequent important criminal justice hearings listed in Subsections
120     77-38-2(5)(a) through (f) and rights under this chapter.
121          (3) The prosecuting agency shall provide notice to a victim of a crime:
122          (a) for the important criminal justice hearings, provided in Subsections 77-38-2(5)(a)
123     through (f), which the victim has requested[.]; and
124          (b) for restitution requests to be submitted as provided in Subsection 77-38a-302(5)(d).
125          (4) (a) The responsible prosecuting agency may provide initial and subsequent notices
126     in any reasonable manner, including telephonically, electronically, orally, or by means of a
127     letter or form prepared for this purpose.
128          (b) In the event of an unforeseen important criminal justice hearing, listed in
129     Subsections 77-38-2(5)(a) through (f) for which a victim has requested notice, a good faith
130     attempt to contact the victim by telephone shall be considered sufficient notice, provided that
131     the prosecuting agency subsequently notifies the victim of the result of the proceeding.
132          (5) (a) The court shall take reasonable measures to ensure that its scheduling practices
133     for the proceedings provided in Subsections 77-38-2(5)(a) through (f) permit an opportunity for
134     victims of crimes to be notified.
135          (b) The court shall also consider whether any notification system it might use to
136     provide notice of judicial proceedings to defendants could be used to provide notice of those
137     same proceedings to victims of crimes.
138          (6) A defendant or, if it is the moving party, Adult Probation and Parole, shall give
139     notice to the responsible prosecuting agency of any motion for modification of any
140     determination made at any of the important criminal justice hearings provided in Subsections
141     77-38-2(5)(a) through (f) in advance of any requested court hearing or action so that the

142     prosecuting agency may comply with its notification obligation.
143          (7) (a) Notice to a victim of a crime shall be provided by the Board of Pardons and
144     Parole for the important criminal justice hearing provided in Subsection 77-38-2(5)(g).
145          (b) The board may provide notice in any reasonable manner, including telephonically,
146     electronically, orally, or by means of a letter or form prepared for this purpose.
147          (8) Prosecuting agencies and the Board of Pardons and Parole are required to give
148     notice to a victim of a crime for the proceedings provided in Subsections 77-38-2(5)(a) through
149     (f) only where the victim has responded to the initial notice, requested notice of subsequent
150     proceedings, and provided a current address and telephone number if applicable.
151          (9) (a) Law enforcement and criminal justice agencies shall refer any requests for
152     notice or information about crime victim rights from victims to the responsible prosecuting
153     agency.
154          (b) In a case in which the Board of Pardons and Parole is involved, the responsible
155     prosecuting agency shall forward any request for notice it has received from a victim to the
156     Board of Pardons and Parole.
157          (10) In all cases where the number of victims exceeds 10, the responsible prosecuting
158     agency may send any notices required under this chapter in its discretion to a representative
159     sample of the victims.
160          (11) (a) A victim's address, telephone number, and victim impact statement maintained
161     by a peace officer, prosecuting agency, Youth Parole Authority, Division of Juvenile Justice
162     Services, Department of Corrections, and Board of Pardons and Parole, for purposes of
163     providing notice under this section, is classified as protected as provided in Subsection
164     63G-2-305(10).
165          (b) The victim's address, telephone number, and victim impact statement is available
166     only to the following persons or entities in the performance of their duties:
167          (i) a law enforcement agency, including the prosecuting agency;
168          (ii) a victims' right committee as provided in Section 77-37-5;
169          (iii) a governmentally sponsored victim or witness program;

170          (iv) the Department of Corrections;
171          (v) the Utah Office for Victims of Crime;
172          (vi) the Commission on Criminal and Juvenile Justice; and
173          (vii) the Board of Pardons and Parole.
174          (12) The notice provisions as provided in this section do not apply to misdemeanors as
175     provided in Section 77-38-5 and to important juvenile justice hearings as provided in Section
176     77-38-2.
177          (13) (a) When a defendant is charged with a felony crime under Sections 76-5-301
178     through 76-5-310 regarding kidnapping, human trafficking, and human smuggling; Sections
179     76-5-401 through 76-5-413 regarding sexual offenses; or Section 76-10-1306 regarding
180     aggravated exploitation of prostitution, the court may, during any court hearing where the
181     defendant is present, issue a pretrial criminal no contact order:
182          (i) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
183     communicating with the victim directly or through a third party;
184          (ii) ordering the defendant to stay away from the residence, school, place of
185     employment of the victim, and the premises of any of these, or any specified place frequented
186     by the victim or any designated family member of the victim directly or through a third party;
187     and
188          (iii) ordering any other relief that the court considers necessary to protect and provide
189     for the safety of the victim and any designated family or household member of the victim.
190          (b) Violation of a pretrial criminal no contact order issued pursuant to this section is a
191     third degree felony.
192          (c) (i) The court shall provide to the victim a certified copy of any pretrial criminal no
193     contact order that has been issued if the victim can be located with reasonable effort.
194          (ii) The court shall also transmit the pretrial criminal no contact order to the statewide
195     domestic violence network in accordance with Section 78B-7-113.
196          Section 4. Section 77-38a-102 is amended to read:
197          77-38a-102. Definitions.

198          As used in this chapter:
199          (1) "Conviction" includes a:
200          (a) judgment of guilt;
201          (b) a plea of guilty; or
202          (c) a plea of no contest.
203          (2) "Criminal activities" means:
204          (a) any offense of which the defendant is convicted; or
205          (b) any other criminal conduct for which the defendant admits responsibility to the
206     sentencing court with or without an admission of committing the criminal conduct.
207          (3) "Department" means the Department of Corrections.
208          (4) "Diversion" means suspending criminal proceedings prior to conviction on the
209     condition that a defendant agree to participate in a rehabilitation program, make restitution to
210     the victim, or fulfill some other condition.
211          (5) "Party" means the prosecutor, defendant, or department involved in a prosecution.
212          (6) "Pecuniary damages" means all demonstrable economic injury, whether or not yet
213     incurred, including those which a person could recover in a civil action arising out of the facts
214     or events constituting the defendant's criminal activities and includes the fair market value of
215     property taken, destroyed, broken, or otherwise harmed, and losses including lost earnings,
216     including those and other travel expenses reasonably incurred as a result of participation in
217     criminal proceedings, and medical and other expenses, but excludes punitive or exemplary
218     damages and pain and suffering.
219          (7) "Plea agreement" means an agreement entered between the prosecution and
220     defendant setting forth the special terms and conditions and criminal charges upon which the
221     defendant will enter a plea of guilty or no contest.
222          (8) "Plea disposition" means an agreement entered into between the prosecution and
223     defendant including diversion, plea agreement, plea in abeyance agreement, or any agreement
224     by which the defendant may enter a plea in any other jurisdiction or where charges are
225     dismissed without a plea.

226          (9) "Plea in abeyance" means an order by a court, upon motion of the prosecution and
227     the defendant, accepting a plea of guilty or of no contest from the defendant but not, at that
228     time, entering judgment of conviction against him nor imposing sentence upon him on
229     condition that he comply with specific conditions as set forth in a plea in abeyance agreement.
230          (10) "Plea in abeyance agreement" means an agreement entered into between the
231     prosecution and the defendant setting forth the specific terms and conditions upon which,
232     following acceptance of the agreement by the court, a plea may be held in abeyance.
233          (11) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
234     victim, including prejudgment interest, the accrual of interest from the time of sentencing,
235     insured damages, reimbursement for payment of a reward, and payment for expenses to a
236     governmental entity for extradition or transportation and as may be further defined by law.
237          (12) (a) "Reward" means a sum of money:
238          (i) offered to the public for information leading to the arrest and conviction of an
239     offender; and
240          (ii) that has been paid to a person or persons who provide this information, except that
241     the person receiving the payment may not be a codefendant, an accomplice, or a bounty hunter.
242          (b) "Reward" does not include any amount paid in excess of the sum offered to the
243     public.
244          (13) "Screening" means the process used by a prosecuting attorney to terminate
245     investigative action, proceed with prosecution, move to dismiss a prosecution that has been
246     commenced, or cause a prosecution to be diverted.
247          (14) (a) "Victim" means any person or entity, including the Utah Office for Victims of
248     Crime, who the court determines has suffered pecuniary damages as a result of the defendant's
249     criminal activities.
250          (b) "Victim" may not include a codefendant or accomplice.
251          Section 5. Section 77-38a-302 is amended to read:
252          77-38a-302. Restitution criteria.
253          (1) When a defendant is convicted of criminal activity that has resulted in pecuniary

254     damages, in addition to any other sentence it may impose, the court shall order that the
255     defendant make restitution to victims of crime as provided in this chapter, or for conduct for
256     which the defendant has agreed to make restitution as part of a plea disposition. For purposes
257     of restitution, a victim has the meaning as defined in Subsection 77-38a-102(14) and in
258     determining whether restitution is appropriate, the court shall follow the criteria and procedures
259     as provided in Subsections (2) through (5).
260          (2) In determining restitution, the court shall determine complete restitution and
261     court-ordered restitution.
262          (a) "Complete restitution" means restitution necessary to compensate a victim for all
263     losses caused by the defendant.
264          (b) "Court-ordered restitution" means the restitution the court having criminal
265     jurisdiction orders the defendant to pay as a part of the criminal sentence [at the time of
266     sentencing or within one year after sentencing].
267          (c) Complete restitution and court-ordered restitution shall be determined as provided
268     in Subsection (5).
269          (3) If the court determines that restitution is appropriate or inappropriate under this
270     part, the court shall make the reasons for the decision part of the court record.
271          (4) If the defendant objects to the imposition, amount, or distribution of the restitution,
272     the court shall allow the defendant a full hearing on the issue.
273          (5) (a) For the purpose of determining restitution for an offense, the offense shall
274     include any criminal conduct admitted by the defendant to the sentencing court or to which the
275     defendant agrees to pay restitution. A victim of an offense that involves as an element a
276     scheme, a conspiracy, or a pattern of criminal activity, includes any person directly harmed by
277     the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.
278          (b) In determining the monetary sum and other conditions for complete restitution, the
279     court shall consider all relevant facts, including:
280          (i) the cost of the damage or loss if the offense resulted in damage to or loss or
281     destruction of property of a victim of the offense;

282          (ii) the cost of necessary medical and related professional services and devices relating
283     to physical or mental health care, including nonmedical care and treatment rendered in
284     accordance with a method of healing recognized by the law of the place of treatment;
285          (iii) the cost of necessary physical and occupational therapy and rehabilitation;
286          (iv) the income lost by the victim as a result of the offense [if the offense resulted in
287     bodily injury to a victim];
288          (v) [up to five days of] the individual victim's reasonable determinable wages that are
289     lost due to theft of or damage to tools or equipment items of a trade that were owned by the
290     victim and were essential to the victim's current employment at the time of the offense; and
291          (vi) the cost of necessary funeral and related services if the offense resulted in the death
292     of a victim.
293          (c) In determining the monetary sum and other conditions for court-ordered restitution,
294     the court shall consider:
295          (i) the factors listed in Subsections (5)(a) and (b);
296          (ii) the financial resources of the defendant, as disclosed in the financial declaration
297     described in Section 77-38a-204;
298          (iii) the burden that payment of restitution will impose, with regard to the other
299     obligations of the defendant;
300          (iv) the ability of the defendant to pay restitution on an installment basis or on other
301     conditions to be fixed by the court;
302          (v) the rehabilitative effect on the defendant of the payment of restitution and the
303     method of payment; and
304          (vi) other circumstances that the court determines may make restitution inappropriate.
305          [(d) (i) Except as provided in Subsection (5)(d)(ii), the court shall determine complete
306     restitution and court-ordered restitution, and shall make all restitution orders at the time of
307     sentencing if feasible, otherwise within one year after sentencing.]
308          (d) (i) The prosecuting agency shall submit all requests for complete restitution and
309     court ordered restitution to the court at the time of sentencing if feasible, otherwise within one

310     year after sentencing.
311          (ii) If a defendant is placed on probation pursuant to Section 77-18-1:
312          (A) the court shall determine complete restitution and court ordered restitution; and
313          (B) the time period for determination of complete restitution and court ordered
314     restitution may be extended by the court upon a finding of good cause, but may not exceed the
315     period of the probation term served by the defendant.
316          (iii) If the defendant is committed to prison:
317          [(ii) Any] (A) any pecuniary damages that have not been determined by the court
318     within one year after sentencing may be determined by the Board of Pardons and Parole[.]; and
319          [(e) The] (B) the Board of Pardons and Parole may, within one year after sentencing,
320     refer an order of judgment and commitment back to the court for determination of restitution.
Bill Status / Votes
• Senate Actions • House Actions • Fiscal Actions • Other Actions
DateActionLocationVote
2/22/2016 Bill Numbered but not DistributedLegislative Research and General Counsel
2/22/2016 Numbered Bill Publicly DistributedLegislative Research and General Counsel
2/22/2016 House/ received bill from Legislative ResearchClerk of the House
2/22/2016 House/ 1st reading (Introduced)House Rules Committee
2/25/2016 House/ received fiscal note from Fiscal AnalystHouse Rules Committee
2/26/2016 House/ to standing committeeHouse Law Enforcement and Criminal Justice Committee
2/29/2016 LFA/ bill sent to agencies for fiscal inputHouse Law Enforcement and Criminal Justice Committee
3/1/2016 House Comm - Substitute RecommendationHouse Law Enforcement and Criminal Justice Committee
3/1/2016 House Comm - Favorable RecommendationHouse Law Enforcement and Criminal Justice Committee8 0 3
3/1/2016 Bill Substituted by Standing CommitteeHouse Law Enforcement and Criminal Justice Committee
3/1/2016 (2:27:28 PM)House/ comm rpt/ substitutedHouse Law Enforcement and Criminal Justice Committee
3/1/2016 (2:27:29 PM)House/ 2nd readingHouse 3rd Reading Calendar for House bills
3/2/2016 LFA/ fiscal note sent to sponsorHouse 3rd Reading Calendar for House bills
3/3/2016 LFA/ fiscal note publicly availableHouse 3rd Reading Calendar for House bills
3/7/2016 (2:54:17 PM)House/ 3rd readingHouse 3rd Reading Calendar for House bills
3/7/2016 (2:55:32 PM)House/ floor amendment # 1House 3rd Reading Calendar for House billsVoice vote
3/7/2016 (2:58:08 PM)House/ passed 3rd readingSenate Secretary72 0 3
3/7/2016 (2:58:10 PM)House/ to SenateSenate Secretary
3/7/2016 Senate/ received from HouseWaiting for Introduction in the Senate
3/7/2016 Senate/ 1st reading (Introduced)Senate Rules Committee
3/10/2016 Senate/ Rules to 2nd Reading CalendarSenate 2nd Reading Calendar
3/10/2016 (3:14:40 PM)Senate/ 2nd & 3rd readings/ suspensionSenate 2nd Reading Calendar
3/10/2016 (3:19:05 PM)Senate/ passed 2nd & 3rd readings/ suspensionSenate President27 0 2
3/10/2016 (3:19:06 PM)Senate/ signed by President/ returned to HouseHouse Speaker
3/10/2016 (3:19:07 PM)Senate/ to HouseHouse Speaker
3/10/2016 House/ received from SenateHouse Speaker
3/10/2016 House/ signed by Speaker/ sent for enrollingLegislative Research and General Counsel / Enrolling
3/10/2016 Bill Received from House for EnrollingLegislative Research and General Counsel / Enrolling
3/16/2016 Draft of Enrolled Bill PreparedLegislative Research and General Counsel / Enrolling
3/18/2016 Enrolled Bill Returned to House or SenateClerk of the House
3/18/2016 House/ enrolled bill to PrintingClerk of the House
3/18/2016 House/ to GovernorExecutive Branch - Governor
3/23/2016 Governor SignedLieutenant Governor's office for filing