Chief Sponsor: Daniel W. Thatcher

House Sponsor: Suzanne Harrison


8     General Description:
9          This bill allows the court to modify probation under certain circumstances.
10     Highlighted Provisions:
11          This bill:
12          ▸     allows a court to modify probation to include a period of time served in a county
13     jail.
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 2019, Chapters 28 and 429

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 Chapter 2a,
30     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:
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 under the supervision of an agency of local government or with a
37     private organization; or
38          (iii) on court probation under the jurisdiction of the sentencing court.
39          (b) (i) The legal custody of all probationers under the supervision of the department is
40     with the department.
41          (ii) The legal custody of all probationers under the jurisdiction of the sentencing court
42     is vested as ordered by the court.
43          (iii) The court has continuing jurisdiction over all probationers.
44          (iv) Court probation may include an administrative level of services, including
45     notification to the court of scheduled periodic reviews of the probationer's compliance with
46     conditions.
47          (c) Supervised probation services provided by the department, an agency of local
48     government, or a private organization shall specifically address the offender's risk of
49     reoffending as identified by a validated risk and needs screening or assessment.
50          (3) (a) The department shall establish supervision and presentence investigation
51     standards for all individuals referred to the department based on:
52          (i) the type of offense;
53          (ii) the results of a risk and needs assessment;
54          (iii) the demand for services;
55          (iv) the availability of agency resources;
56          (v) public safety; and
57          (vi) other criteria established by the department to determine what level of services
58     shall be provided.

59          (b) Proposed supervision and investigation standards shall be submitted to the Judicial
60     Council and the Board of Pardons and Parole on an annual basis for review and comment prior
61     to adoption by the department.
62          (c) The Judicial Council and the department shall establish procedures to implement
63     the supervision and investigation standards.
64          (d) The Judicial Council and the department shall annually consider modifications to
65     the standards based upon criteria in Subsection (3)(a) and other criteria as they consider
66     appropriate.
67          (e) The Judicial Council and the department shall annually prepare an impact report
68     and submit it to the appropriate legislative appropriations subcommittee.
69          (4) Notwithstanding other provisions of law, the department is not required to
70     supervise the probation of an individual convicted of a class B or C misdemeanor or an
71     infraction or to conduct presentence investigation reports on a class C misdemeanor or
72     infraction. However, the department may supervise the probation of a class B misdemeanant in
73     accordance with department standards.
74          (5) (a) Before the imposition of any sentence, the court may, with the concurrence of
75     the defendant, continue the date for the imposition of sentence for a reasonable period of time
76     for the purpose of obtaining a presentence investigation report from the department or
77     information from other sources about the defendant.
78          (b) The presentence investigation report shall include:
79          (i) a victim impact statement according to guidelines set in Section 77-38a-203
80     describing the effect of the crime on the victim and the victim's family;
81          (ii) a specific statement of pecuniary damages, accompanied by a recommendation
82     from the department regarding the payment of restitution with interest by the defendant in
83     accordance with Chapter 38a, Crime Victims Restitution Act;
84          (iii) findings from any screening and any assessment of the offender conducted under
85     Section 77-18-1.1;
86          (iv) recommendations for treatment of the offender; and
87          (v) the number of days since the commission of the offense that the offender has spent
88     in the custody of the jail and the number of days, if any, the offender was released to a
89     supervised release or alternative incarceration program under Section 17-22-5.5.

90          (c) The contents of the presentence investigation report are protected and are not
91     available except by court order for purposes of sentencing as provided by rule of the Judicial
92     Council or for use by the department.
93          (6) (a) The department shall provide the presentence investigation report to the
94     defendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the
95     court for review, three working days prior to sentencing. Any alleged inaccuracies in the
96     presentence investigation report, which have not been resolved by the parties and the
97     department prior to sentencing, shall be brought to the attention of the sentencing judge, and
98     the judge may grant an additional 10 working days to resolve the alleged inaccuracies of the
99     report with the department. If after 10 working days the inaccuracies cannot be resolved, the
100     court shall make a determination of relevance and accuracy on the record.
101          (b) If a party fails to challenge the accuracy of the presentence investigation report at
102     the time of sentencing, that matter shall be considered to be waived.
103          (7) At the time of sentence, the court shall receive any testimony, evidence, or
104     information the defendant or the prosecuting attorney desires to present concerning the
105     appropriate sentence. This testimony, evidence, or information shall be presented in open court
106     on record and in the presence of the defendant.
107          (8) While on probation, and as a condition of probation, the court may require that a
108     defendant perform any or all of the following:
109          (a) provide for the support of others for whose support the defendant is legally liable;
110          (b) participate in available treatment programs, including any treatment program in
111     which the defendant is currently participating, if the program is acceptable to the court;
112          (c) if on probation for a felony offense, serve a period of time, as an initial condition of
113     probation, not to exceed one year, in a county jail designated by the department, after
114     considering any recommendation by the court as to which jail the court finds most
115     appropriate[;]:
116          (i) the court may modify probation to include a period of time served in a county jail
117     immediately prior to the termination of probation as long as the terminal period of time does
118     not exceed one year; and
119          (ii) jail days ordered as a sanction for probation violations do not apply to the
120     limitation on jail days described in Subsection (8)(c) or (8)(c)(i);

121          (d) serve a term of home confinement, which may include the use of electronic
122     monitoring;
123          (e) participate in compensatory service restitution programs, including the
124     compensatory service program provided in Section 76-6-107.1;
125          (f) pay for the costs of investigation, probation, and treatment services;
126          (g) make restitution or reparation to the victim or victims with interest in accordance
127     with Chapter 38a, Crime Victims Restitution Act; and
128          (h) comply with other terms and conditions the court considers appropriate to ensure
129     public safety or increase a defendant's likelihood of success on probation.
130          (9) The department shall collect and disburse the accounts receivable as defined by
131     Section 77-32a-101, with interest and any other costs assessed under Section 64-13-21 during:
132          (a) the parole period and any extension of that period in accordance with Subsection
133     77-27-6(4); and
134          (b) the probation period in cases for which the court orders supervised probation and
135     any extension of that period by the department in accordance with Subsection (10).
136          (10) (a) (i) Except as provided in Subsection (10)(a)(ii), probation of an individual
137     placed on probation after December 31, 2018:
138          (A) may not exceed the individual's maximum sentence;
139          (B) shall be for a period of time that is in accordance with the supervision length
140     guidelines established by the Utah Sentencing Commission under Section 63M-7-404, to the
141     extent the guidelines are consistent with the requirements of the law; and
142          (C) shall be terminated in accordance with the supervision length guidelines
143     established by the Utah Sentencing Commission under Section 63M-7-404, to the extent the
144     guidelines are consistent with the requirements of the law.
145          (ii) Probation of an individual placed on probation after December 31, 2018, whose
146     maximum sentence is one year or less may not exceed 36 months.
147          (iii) Probation of an individual placed on probation on or after October 1, 2015, but
148     before January 1, 2019, may be terminated at any time at the discretion of the court or upon
149     completion without violation of 36 months probation in felony or class A misdemeanor cases,
150     12 months in cases of class B or C misdemeanors or infractions, or as allowed pursuant to
151     Section 64-13-21 regarding earned credits.

152          (b) (i) If, upon expiration or termination of the probation period under Subsection
153     (10)(a), there remains an unpaid balance upon the accounts receivable as defined in Section
154     77-32a-101, the court may retain jurisdiction of the case and continue the defendant on bench
155     probation for the limited purpose of enforcing the payment of the account receivable. If the
156     court retains jurisdiction for this limited purpose, the court may order the defendant to pay to
157     the court the costs associated with continued probation under this Subsection (10).
158          (ii) In accordance with Section 77-18-6, the court shall record in the registry of civil
159     judgments any unpaid balance not already recorded and immediately transfer responsibility to
160     collect the account to the Office of State Debt Collection.
161          (iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its
162     own motion, the court may require the defendant to show cause why the defendant's failure to
163     pay should not be treated as contempt of court.
164          (c) (i) The department shall notify the court, the Office of State Debt Collection, and
165     the prosecuting attorney in writing in advance in all cases when termination of supervised
166     probation is being requested by the department or will occur by law.
167          (ii) The notification shall include a probation progress report and complete report of
168     details on outstanding accounts receivable.
169          (11) (a) (i) Any time served by a probationer outside of confinement after having been
170     charged with a probation violation and prior to a hearing to revoke probation does not
171     constitute service of time toward the total probation term unless the probationer is exonerated
172     at a hearing to revoke the probation.
173          (ii) Any time served in confinement awaiting a hearing or decision concerning
174     revocation of probation does not constitute service of time toward the total probation term
175     unless the probationer is exonerated at the hearing.
176          (iii) Any time served in confinement awaiting a hearing or decision concerning
177     revocation of probation constitutes service of time toward a term of incarceration imposed as a
178     result of the revocation of probation or a graduated sanction imposed under Section
179     63M-7-404.
180          (b) The running of the probation period is tolled upon the filing of a violation report
181     with the court alleging a violation of the terms and conditions of probation or upon the issuance
182     of an order to show cause or warrant by the court.

183          (12) (a) (i) Probation may be modified as is consistent with the supervision length
184     guidelines and the graduated sanctions and incentives developed by the Utah Sentencing
185     Commission under Section 63M-7-404.
186          (ii) The length of probation may not be extended, except upon waiver of a hearing by
187     the probationer or upon a hearing and a finding in court that the probationer has violated the
188     conditions of probation.
189          (iii) Probation may not be revoked except upon a hearing in court and a finding that the
190     conditions of probation have been violated.
191          (b) (i) Upon the filing of an affidavit, or an unsworn written declaration executed in
192     substantial compliance with Section 78B-5-705, alleging with particularity facts asserted to
193     constitute violation of the conditions of probation, the court shall determine if the affidavit or
194     unsworn written declaration establishes probable cause to believe that revocation, modification,
195     or extension of probation is justified.
196          (ii) If the court determines there is probable cause, it shall cause to be served on the
197     defendant a warrant for the defendant's arrest or a copy of the affidavit or unsworn written
198     declaration and an order to show cause why the defendant's probation should not be revoked,
199     modified, or extended.
200          (c) (i) The order to show cause shall specify a time and place for the hearing and shall
201     be served upon the defendant at least five days prior to the hearing.
202          (ii) The defendant shall show good cause for a continuance.
203          (iii) The order to show cause shall inform the defendant of a right to be represented by
204     counsel at the hearing and to have counsel appointed if the defendant is indigent.
205          (iv) The order shall also inform the defendant of a right to present evidence.
206          (d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit
207     or unsworn written declaration.
208          (ii) If the defendant denies the allegations of the affidavit or unsworn written
209     declaration, the prosecuting attorney shall present evidence on the allegations.
210          (iii) The persons who have given adverse information on which the allegations are
211     based shall be presented as witnesses subject to questioning by the defendant unless the court
212     for good cause otherwise orders.
213          (iv) The defendant may call witnesses, appear and speak in the defendant's own behalf,

214     and present evidence.
215          (e) (i) After the hearing the court shall make findings of fact.
216          (ii) Upon a finding that the defendant violated the conditions of probation, the court
217     may order the probation revoked, modified, continued, or reinstated for all or a portion of the
218     original term of probation.
219          (iii) (A) Except as provided in Subsection (10)(a)(ii), the court may not require a
220     defendant to remain on probation for a period of time that exceeds the length of the defendant's
221     maximum sentence.
222          (B) Except as provided in Subsection (10)(a)(ii), if a defendant's probation is revoked
223     and later reinstated, the total time of all periods of probation the defendant serves, relating to
224     the same sentence, may not exceed the defendant's maximum sentence.
225          (iv) If a period of incarceration is imposed for a violation, the defendant shall be
226     sentenced within the guidelines established by the Utah Sentencing Commission pursuant to
227     Subsection 63M-7-404(4), unless the judge determines that:
228          (A) the defendant needs substance abuse or mental health treatment, as determined by a
229     validated risk and needs screening and assessment, that warrants treatment services that are
230     immediately available in the community; or
231          (B) the sentence previously imposed shall be executed.
232          (v) If the defendant had, prior to the imposition of a term of incarceration or the
233     execution of the previously imposed sentence under this Subsection (12), served time in jail as
234     a condition of probation or due to a violation of probation under Subsection (12)(e)(iv), the
235     time the probationer served in jail constitutes service of time toward the sentence previously
236     imposed.
237          (13) The court may order the defendant to commit the defendant to the custody of the
238     Division of Substance Abuse and Mental Health for treatment at the Utah State Hospital as a
239     condition of probation or stay of sentence, only after the superintendent of the Utah State
240     Hospital or the superintendent's designee has certified to the court that:
241          (a) the defendant is appropriate for and can benefit from treatment at the state hospital;
242          (b) treatment space at the hospital is available for the defendant; and
243          (c) individuals described in Subsection 62A-15-610(2)(g) are receiving priority for
244     treatment over the defendants described in this Subsection (13).

245          (14) Presentence investigation reports are classified protected in accordance with Title
246     63G, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections
247     63G-2-403 and 63G-2-404, the State Records Committee may not order the disclosure of a
248     presentence investigation report. Except for disclosure at the time of sentencing pursuant to
249     this section, the department may disclose the presentence investigation only when:
250          (a) ordered by the court pursuant to Subsection 63G-2-202(7);
251          (b) requested by a law enforcement agency or other agency approved by the department
252     for purposes of supervision, confinement, and treatment of the offender;
253          (c) requested by the Board of Pardons and Parole;
254          (d) requested by the subject of the presentence investigation report or the subject's
255     authorized representative;
256          (e) requested by the victim of the crime discussed in the presentence investigation
257     report or the victim's authorized representative, provided that the disclosure to the victim shall
258     include only information relating to statements or materials provided by the victim, to the
259     circumstances of the crime including statements by the defendant, or to the impact of the crime
260     on the victim or the victim's household; or
261          (f) requested by a sex offender treatment provider who is certified to provide treatment
262     under the program established in Subsection 64-13-25(3) and who, at the time of the request:
263          (i) is providing sex offender treatment to the offender who is the subject of the
264     presentence investigation report; and
265          (ii) provides written assurance to the department that the report:
266          (A) is necessary for the treatment of the offender;
267          (B) will be used solely for the treatment of the offender; and
268          (C) will not be disclosed to an individual or entity other than the offender.
269          (15) (a) The court shall consider home confinement as a condition of probation under
270     the supervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5.
271          (b) The department shall establish procedures and standards for home confinement,
272     including electronic monitoring, for all individuals referred to the department in accordance
273     with Subsection (16).
274          (16) (a) If the court places the defendant on probation under this section, it may order
275     the defendant to participate in home confinement through the use of electronic monitoring as

276     described in this section until further order of the court.
277          (b) The electronic monitoring shall alert the department and the appropriate law
278     enforcement unit of the defendant's whereabouts.
279          (c) The electronic monitoring device shall be used under conditions which require:
280          (i) the defendant to wear an electronic monitoring device at all times; and
281          (ii) that a device be placed in the home of the defendant, so that the defendant's
282     compliance with the court's order may be monitored.
283          (d) If a court orders a defendant to participate in home confinement through electronic
284     monitoring as a condition of probation under this section, it shall:
285          (i) place the defendant on probation under the supervision of the Department of
286     Corrections;
287          (ii) order the department to place an electronic monitoring device on the defendant and
288     install electronic monitoring equipment in the residence of the defendant; and
289          (iii) order the defendant to pay the costs associated with home confinement to the
290     department or the program provider.
291          (e) The department shall pay the costs of home confinement through electronic
292     monitoring only for an individual who is determined to be indigent by the court.
293          (f) The department may provide the electronic monitoring described in this section
294     either directly or by contract with a private provider.