Chief Sponsor: Eric K. Hutchings

Senate Sponsor: Brian E. Shiozawa


8     General Description:
9          This bill modifies the Utah Criminal Code and the Utah Code of Criminal Procedure
10     regarding penalties.
11     Highlighted Provisions:
12          This bill:
13          ▸     modifies provisions regarding probation, including supervision and services; and
14          ▸     modifies the earned time program for incarcerated offenders.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          This bill provides a special effective date.
19     Utah Code Sections Affected:
20     AMENDS:
21          77-18-1, as last amended by Laws of Utah 2015, Chapters 412 and 413
22          77-27-5.4, as enacted by Laws of Utah 2015, Chapter 412

24     Be it enacted by the Legislature of the state of Utah:
25          Section 1. Section 77-18-1 is amended to read:
26          77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation --
27     Supervision -- Presentence investigation -- Standards -- Confidentiality -- Terms and

28     conditions -- Termination, revocation, modification, or extension -- Hearings -- Electronic
29     monitoring.
30          (1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea
31     in abeyance agreement, the court may hold the plea in abeyance as provided in Title 77,
32     Chapter 2a, Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
33          (2) (a) On a plea of guilty, guilty with a mental illness, no contest, or conviction of any
34     crime or offense, the court may, after imposing sentence, suspend the execution of the sentence
35     and place the defendant on probation. The court may place the defendant:
36          (i) on probation under the supervision of the Department of Corrections except in cases
37     of class C misdemeanors or infractions;
38          (ii) on probation [with] under the supervision of an agency of local government or with
39     a private organization; or
40          (iii) on [bench] court probation under the jurisdiction of the sentencing court.
41          (b) (i) The legal custody of all probationers under the supervision of the department is
42     with the department.
43          (ii) The legal custody of all probationers under the jurisdiction of the sentencing court
44     is vested as ordered by the court.
45          (iii) The court has continuing jurisdiction over all probationers.
46          (iv) Court probation may include an administrative level of services, including
47     notification to the court of scheduled periodic reviews of the probationer's compliance with
48     conditions.
49          (c) Supervised probation services provided by the department, an agency of local
50     government, or a private organization shall specifically address the offender's risk of
51     reoffending as identified by a validated risk and needs screening or assessment.
52          (3) (a) The department shall establish supervision and presentence investigation
53     standards for all individuals referred to the department. These standards shall be based on:
54          (i) the type of offense;
55          (ii) the results of a risk and needs assessment;
56          (iii) the demand for services;
57          (iv) the availability of agency resources;
58          (v) public safety; and

59          (vi) other criteria established by the department to determine what level of services
60     shall be provided.
61          (b) Proposed supervision and investigation standards shall be submitted to the Judicial
62     Council and the Board of Pardons and Parole on an annual basis for review and comment prior
63     to adoption by the department.
64          (c) The Judicial Council and the department shall establish procedures to implement
65     the supervision and investigation standards.
66          (d) The Judicial Council and the department shall annually consider modifications to
67     the standards based upon criteria in Subsection (3)(a) and other criteria as they consider
68     appropriate.
69          (e) The Judicial Council and the department shall annually prepare an impact report
70     and submit it to the appropriate legislative appropriations subcommittee.
71          (4) Notwithstanding other provisions of law, the department is not required to
72     supervise the probation of persons convicted of class B or C misdemeanors or infractions or to
73     conduct presentence investigation reports on class C misdemeanors or infractions. However,
74     the department may supervise the probation of class B misdemeanants in accordance with
75     department standards.
76          (5) (a) Before the imposition of any sentence, the court may, with the concurrence of
77     the defendant, continue the date for the imposition of sentence for a reasonable period of time
78     for the purpose of obtaining a presentence investigation report from the department or
79     information from other sources about the defendant.
80          (b) The presentence investigation report shall include:
81          (i) a victim impact statement according to guidelines set in Section 77-38a-203
82     describing the effect of the crime on the victim and the victim's family;
83          (ii) a specific statement of pecuniary damages, accompanied by a recommendation
84     from the department regarding the payment of restitution with interest by the defendant in
85     accordance with Title 77, Chapter 38a, Crime Victims Restitution Act;
86          (iii) findings from any screening and any assessment of the offender conducted under
87     Section 77-18-1.1;
88          (iv) recommendations for treatment of the offender; and
89          (v) the number of days since the commission of the offense that the offender has spent

90     in the custody of the jail and the number of days, if any, the offender was released to a
91     supervised release or alternative incarceration program under Section 17-22-5.5.
92          (c) The contents of the presentence investigation report are protected and are not
93     available except by court order for purposes of sentencing as provided by rule of the Judicial
94     Council or for use by the department.
95          (6) (a) The department shall provide the presentence investigation report to the
96     defendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the
97     court for review, three working days prior to sentencing. Any alleged inaccuracies in the
98     presentence investigation report, which have not been resolved by the parties and the
99     department prior to sentencing, shall be brought to the attention of the sentencing judge, and
100     the judge may grant an additional 10 working days to resolve the alleged inaccuracies of the
101     report with the department. If after 10 working days the inaccuracies cannot be resolved, the
102     court shall make a determination of relevance and accuracy on the record.
103          (b) If a party fails to challenge the accuracy of the presentence investigation report at
104     the time of sentencing, that matter shall be considered to be waived.
105          (7) At the time of sentence, the court shall receive any testimony, evidence, or
106     information the defendant or the prosecuting attorney desires to present concerning the
107     appropriate sentence. This testimony, evidence, or information shall be presented in open court
108     on record and in the presence of the defendant.
109          (8) While on probation, and as a condition of probation, the court may require that the
110     defendant:
111          (a) perform any or all of the following:
112          (i) pay, in one or several sums, any fine imposed at the time of being placed on
113     probation;
114          (ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
115          (iii) provide for the support of others for whose support the defendant is legally liable;
116          (iv) participate in available treatment programs, including any treatment program in
117     which the defendant is currently participating, if the program is acceptable to the court;
118          (v) serve a period of time, not to exceed one year, in a county jail designated by the
119     department, after considering any recommendation by the court as to which jail the court finds
120     most appropriate;

121          (vi) serve a term of home confinement, which may include the use of electronic
122     monitoring;
123          (vii) participate in compensatory service restitution programs, including the
124     compensatory service program provided in Section 76-6-107.1;
125          (viii) pay for the costs of investigation, probation, and treatment services;
126          (ix) make restitution or reparation to the victim or victims with interest in accordance
127     with Title 77, Chapter 38a, Crime Victims Restitution Act; and
128          (x) comply with other terms and conditions the court considers appropriate; and
129          (b) if convicted on or after May 5, 1997:
130          (i) complete high school classwork and obtain a high school graduation diploma, a
131     GED certificate, or a vocational certificate at the defendant's own expense if the defendant has
132     not received the diploma, GED certificate, or vocational certificate prior to being placed on
133     probation; or
134          (ii) provide documentation of the inability to obtain one of the items listed in
135     Subsection (8)(b)(i) because of:
136          (A) a diagnosed learning disability; or
137          (B) other justified cause.
138          (9) The department shall collect and disburse the account receivable as defined by
139     Section 76-3-201.1, with interest and any other costs assessed under Section 64-13-21 during:
140          (a) the parole period and any extension of that period in accordance with Subsection
141     77-27-6(4); and
142          (b) the probation period in cases for which the court orders supervised probation and
143     any extension of that period by the department in accordance with Subsection (10).
144          (10) (a) (i) Probation may be terminated at any time at the discretion of the court or
145     upon completion without violation of 36 months probation in felony or class A misdemeanor
146     cases, 12 months in cases of class B or C misdemeanors or infractions, or as allowed pursuant
147     to Section 64-13-21 regarding earned credits.
148          (ii) (A) If, upon expiration or termination of the probation period under Subsection
149     (10)(a)(i), there remains an unpaid balance upon the account receivable as defined in Section
150     76-3-201.1, the court may retain jurisdiction of the case and continue the defendant on bench
151     probation for the limited purpose of enforcing the payment of the account receivable. If the

152     court retains jurisdiction for this limited purpose, the court may order the defendant to pay to
153     the court the costs associated with continued probation under this Subsection (10).
154          (B) In accordance with Section 77-18-6, the court shall record in the registry of civil
155     judgments any unpaid balance not already recorded and immediately transfer responsibility to
156     collect the account to the Office of State Debt Collection.
157          (iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its
158     own motion, the court may require the defendant to show cause why the defendant's failure to
159     pay should not be treated as contempt of court.
160          (b) (i) The department shall notify the sentencing court, the Office of State Debt
161     Collection, and the prosecuting attorney in writing in advance in all cases when termination of
162     supervised probation is being requested by the department or will occur by law.
163          (ii) The notification shall include a probation progress report and complete report of
164     details on outstanding accounts receivable.
165          (11) (a) (i) Any time served by a probationer outside of confinement after having been
166     charged with a probation violation and prior to a hearing to revoke probation does not
167     constitute service of time toward the total probation term unless the probationer is exonerated
168     at a hearing to revoke the probation.
169          (ii) Any time served in confinement awaiting a hearing or decision concerning
170     revocation of probation does not constitute service of time toward the total probation term
171     unless the probationer is exonerated at the hearing.
172          (iii) Any time served in confinement awaiting a hearing or decision concerning
173     revocation of probation constitutes service of time toward a term of incarceration imposed as a
174     result of the revocation of probation or a graduated sanction imposed under Section
175     63M-7-404.
176          (b) The running of the probation period is tolled upon the filing of a violation report
177     with the court alleging a violation of the terms and conditions of probation or upon the issuance
178     of an order to show cause or warrant by the court.
179          (12) (a) (i) Probation may [not] be modified [or extended] as is consistent with the
180     graduated sanctions and incentives developed by the Utah Sentencing Commission under
181     Section 63M-7-404, but the length of probation may not be extended, except upon waiver of a
182     hearing by the probationer or upon a hearing and a finding in court that the probationer has

183     violated the conditions of probation.
184          (ii) Probation may not be revoked except upon a hearing in court and a finding that the
185     conditions of probation have been violated.
186          (b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to
187     constitute violation of the conditions of probation, the court that authorized probation shall
188     determine if the affidavit establishes probable cause to believe that revocation, modification, or
189     extension of probation is justified.
190          (ii) If the court determines there is probable cause, it shall cause to be served on the
191     defendant a warrant for the defendant's arrest or a copy of the affidavit and an order to show
192     cause why the defendant's probation should not be revoked, modified, or extended.
193          (c) (i) The order to show cause shall specify a time and place for the hearing and shall
194     be served upon the defendant at least five days prior to the hearing.
195          (ii) The defendant shall show good cause for a continuance.
196          (iii) The order to show cause shall inform the defendant of a right to be represented by
197     counsel at the hearing and to have counsel appointed if the defendant is indigent.
198          (iv) The order shall also inform the defendant of a right to present evidence.
199          (d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
200          (ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney
201     shall present evidence on the allegations.
202          (iii) The persons who have given adverse information on which the allegations are
203     based shall be presented as witnesses subject to questioning by the defendant unless the court
204     for good cause otherwise orders.
205          (iv) The defendant may call witnesses, appear and speak in the defendant's own behalf,
206     and present evidence.
207          (e) (i) After the hearing the court shall make findings of fact.
208          (ii) Upon a finding that the defendant violated the conditions of probation, the court
209     may order the probation revoked, modified, continued, or [that the entire probation term
210     commence anew] reinstated for all or a portion of the original term of probation.
211          (iii) If a period of incarceration is imposed for a violation, the defendant shall be
212     sentenced within the guidelines established by the Utah Sentencing Commission pursuant to
213     Subsection 63M-7-404(4), unless the judge determines that:

214          (A) the defendant needs substance abuse or mental health treatment, as determined by a
215     validated risk and needs screening or assessment, that warrants treatment services that are
216     immediately available in the community; or
217          (B) the sentence previously imposed shall be executed.
218          (iv) If the defendant had, prior to the imposition of a term of incarceration or the
219     execution of the previously imposed sentence under this Subsection (12), served time in jail as
220     a condition of probation or due to a violation of probation under Subsection 77-18-1(12)(e)(iii),
221     the time the probationer served in jail constitutes service of time toward the sentence
222     previously imposed.
223          (13) The court may order the defendant to commit himself or herself to the custody of
224     the Division of Substance Abuse and Mental Health for treatment at the Utah State Hospital as
225     a condition of probation or stay of sentence, only after the superintendent of the Utah State
226     Hospital or the superintendent's designee has certified to the court that:
227          (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
228          (b) treatment space at the hospital is available for the defendant; and
229          (c) persons described in Subsection 62A-15-610(2)(g) are receiving priority for
230     treatment over the defendants described in this Subsection (13).
231          (14) Presentence investigation reports are classified protected in accordance with Title
232     63G, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections
233     63G-2-403 and 63G-2-404, the State Records Committee may not order the disclosure of a
234     presentence investigation report. Except for disclosure at the time of sentencing pursuant to
235     this section, the department may disclose the presentence investigation only when:
236          (a) ordered by the court pursuant to Subsection 63G-2-202(7);
237          (b) requested by a law enforcement agency or other agency approved by the department
238     for purposes of supervision, confinement, and treatment of the offender;
239          (c) requested by the Board of Pardons and Parole;
240          (d) requested by the subject of the presentence investigation report or the subject's
241     authorized representative; or
242          (e) requested by the victim of the crime discussed in the presentence investigation
243     report or the victim's authorized representative, provided that the disclosure to the victim shall
244     include only information relating to statements or materials provided by the victim, to the

245     circumstances of the crime including statements by the defendant, or to the impact of the crime
246     on the victim or the victim's household.
247          (15) (a) The court shall consider home confinement as a condition of probation under
248     the supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5.
249          (b) The department shall establish procedures and standards for home confinement,
250     including electronic monitoring, for all individuals referred to the department in accordance
251     with Subsection (16).
252          (16) (a) If the court places the defendant on probation under this section, it may order
253     the defendant to participate in home confinement through the use of electronic monitoring as
254     described in this section until further order of the court.
255          (b) The electronic monitoring shall alert the department and the appropriate law
256     enforcement unit of the defendant's whereabouts.
257          (c) The electronic monitoring device shall be used under conditions which require:
258          (i) the defendant to wear an electronic monitoring device at all times; and
259          (ii) that a device be placed in the home of the defendant, so that the defendant's
260     compliance with the court's order may be monitored.
261          (d) If a court orders a defendant to participate in home confinement through electronic
262     monitoring as a condition of probation under this section, it shall:
263          (i) place the defendant on probation under the supervision of the Department of
264     Corrections;
265          (ii) order the department to place an electronic monitoring device on the defendant and
266     install electronic monitoring equipment in the residence of the defendant; and
267          (iii) order the defendant to pay the costs associated with home confinement to the
268     department or the program provider.
269          (e) The department shall pay the costs of home confinement through electronic
270     monitoring only for those persons who have been determined to be indigent by the court.
271          (f) The department may provide the electronic monitoring described in this section
272     either directly or by contract with a private provider.
273          Section 2. Section 77-27-5.4 is amended to read:
274          77-27-5.4. Earned time program.
275          (1) The board shall establish an earned time program that reduces the period of

276     incarceration for offenders who successfully complete specified programs, the purpose of
277     which is to reduce the risk of recidivism.
278          (2) The earned time program shall:
279          (a) provide not less than four months of earned time credit each for the completion of
280     [the highest ranked priority in the offender's case action plan;] up to two programs that:
281          (i) are approved by the board in collaboration with the Department of Corrections; and
282          (ii) are recommended programs that are part of the offender's case action plan; and
283          [(b) provide not less than four months of earned time credit for completion of one of
284     the recommended programs in the offender's case action plan; or]
285          [(c)] (b) allow the board to grant in its discretion earned time credit in addition to the
286     earned time credit provided under [Subsections] Subsection (2)(a) [and (b)].
287          (3) The earned time program may not provide earned time credit for offenders:
288          (a) whose previously ordered release date does not provide enough time, including time
289     for transition services, for the Board of Pardons and Parole to grant the earned time credit;
290          (b) who have been sentenced by the court to a term of life without the possibility of
291     parole; [or]
292          (c) who have been ordered by the Board of Pardons and Parole to serve a life
293     sentence[.];
294          (d) who do not have a current release date; or
295          (e) who have not met a contingency requirement for release that has been ordered by
296     the board.
297          (4) The board may order the forfeiture of earned time credits under this section if [the
298     offender commits a major disciplinary infraction] it determines a rescission hearing is
299     necessary.
300          (5) The department shall notify the board not more than 30 days after an offender
301     completes [a priority in the case action plan] a program as defined in Subsection
302     77-27-5.4(2)(a).
303          (6) The board shall collect data for the fiscal year regarding the operation of the earned
304     time credit program, including:
305          (a) the number of offenders who have earned time credit under this section in the prior
306     year;

307          (b) the amount of time credit earned in the prior year;
308          (c) the number of offenders who forfeited earned time credit; and
309          (d) additional related information as requested by the Commission on Criminal and
310     Juvenile Justice.
311          (7) The board shall collaborate with the Department of Corrections in the
312     establishment of the earned time credit program.
313          (8) To the extent possible, programming and hearings shall be provided early enough
314     in an offender's incarceration to allow the offender to earn time credit.
315          Section 3. Effective date.
316          If approved by two-thirds of all the members elected to each house, this bill takes effect
317     upon approval by the governor, or the day following the constitutional time limit of Utah
318     Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,
319     the date of veto override.

Legislative Review Note
Office of Legislative Research and General Counsel