7 LONG TITLE
8 General Description:
9 This bill amends provisions regarding payments for individuals who are found factually
10 innocent by a court.
11 Highlighted Provisions:
12 This bill:
13 ▸ allows the State Commission of Criminal and Juvenile Justice to pay an individual
14 who is found factually innocent by a court in one lump payment; and
15 ▸ makes technical and conforming changes.
16 Money Appropriated in this Bill:
18 Other Special Clauses:
20 Utah Code Sections Affected:
22 78B-9-402, as last amended by Laws of Utah 2013, Chapter 46
23 78B-9-405, as last amended by Laws of Utah 2012, Chapter 220
25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 78B-9-402 is amended to read:
27 78B-9-402. Petition for determination of factual innocence -- Sufficient
28 allegations -- Notification of victim -- Payment to surviving spouse.
29 (1) A person who has been convicted of a felony offense may petition the district court
30 in the county in which the person was convicted for a hearing to establish that the person is
31 factually innocent of the crime or crimes of which the person was convicted.
32 (2) (a) The petition shall contain an assertion of factual innocence under oath by the
33 petitioner and shall aver, with supporting affidavits or other credible documents, that:
34 (i) newly discovered material evidence exists that, if credible, establishes that the
35 petitioner is factually innocent;
36 (ii) the specific evidence identified by the petitioner in the petition establishes
38 (iii) the material evidence is not merely cumulative of evidence that was known;
39 (iv) the material evidence is not merely impeachment evidence; and
40 (v) viewed with all the other evidence, the newly discovered evidence demonstrates
41 that the petitioner is factually innocent.
42 (b) The court shall review the petition in accordance with the procedures in Subsection
43 (9)(b), and make a finding that the petition has satisfied the requirements of Subsection (2)(a).
44 If the court finds the petition does not meet all the requirements of Subsection (2)(a), it shall
45 dismiss the petition without prejudice and send notice of the dismissal to the petitioner and the
46 attorney general.
47 (3) (a) The petition shall also contain an averment that:
48 (i) neither the petitioner nor the petitioner's counsel knew of the evidence at the time of
49 trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
50 postconviction motion, and the evidence could not have been discovered by the petitioner or
51 the petitioner's counsel through the exercise of reasonable diligence; or
52 (ii) a court has found ineffective assistance of counsel for failing to exercise reasonable
53 diligence in uncovering the evidence.
54 (b) Upon entry of a finding that the petition is sufficient under Subsection (2)(a), the
55 court shall then review the petition to determine if Subsection (3)(a) has been satisfied. If the
56 court finds that the requirements of Subsection (3)(a) have not been satisfied, it may dismiss
57 the petition without prejudice and give notice to the petitioner and the attorney general of the
58 dismissal, or the court may waive the requirements of Subsection (3)(a) if the court finds the
59 petition should proceed to hearing based upon the strength of the petition, and that there is
60 other evidence that could have been discovered through the exercise of reasonable diligence by
61 the petitioner or the petitioner's counsel at trial, and the other evidence:
62 (i) was not discovered by the petitioner or the petitioner's counsel;
63 (ii) is material upon the issue of factual innocence; and
64 (iii) has never been presented to a court.
65 (4) If the conviction for which the petitioner asserts factual innocence was based upon
66 a plea of guilty, the petition shall contain the specific nature and content of the evidence that
67 establishes factual innocence. The court shall review the evidence and may dismiss the petition
68 at any time in the course of the proceedings, if the court finds that the evidence of factual
69 innocence relies solely upon the recantation of testimony or prior statements made by a witness
70 against the petitioner, and the recantation appears to the court to be equivocal or selfserving.
71 (5) A person who has already obtained postconviction relief that vacated or reversed
72 the person's conviction or sentence may also file a petition under this part in the same manner
73 and form as described above, if no retrial or appeal regarding this offense is pending.
74 (6) If some or all of the evidence alleged to be exonerating is biological evidence
75 subject to DNA testing, the petitioner shall seek DNA testing pursuant to Section 78B-9-301.
76 (7) Except as provided in Subsection (9), the petition and all subsequent proceedings
77 shall be in compliance with and governed by Rule 65C, Utah Rules of Civil Procedure, and
78 shall include the underlying criminal case number.
79 (8) After a petition is filed under this section, prosecutors, law enforcement officers,
80 and crime laboratory personnel shall cooperate in preserving evidence and in determining the
81 sufficiency of the chain of custody of the evidence which is the subject of the petition.
82 (9) (a) A person who files a petition under this section shall serve notice of the petition
83 and a copy of the petition upon the office of the prosecutor who obtained the conviction and
84 upon the Utah attorney general.
85 (b) The assigned judge shall conduct an initial review of the petition. If it is apparent
86 to the court that the petitioner is either merely relitigating facts, issues, or evidence presented in
87 previous proceedings or presenting issues that appear frivolous or speculative on their face, the
88 court shall dismiss the petition, state the basis for the dismissal, and serve notice of dismissal
89 upon the petitioner and the attorney general. If, upon completion of the initial review, the court
90 does not dismiss the petition, it shall order the attorney general to file a response to the petition.
91 The attorney general shall, within 30 days after receipt of the court's order, or within any
92 additional period of time the court allows, answer or otherwise respond to all proceedings
93 initiated under this part.
94 (c) After the time for response by the attorney general under Subsection (9)(b) has
95 passed, the court shall order a hearing if it finds the petition meets the requirements of
96 Subsections (2) and (3) and finds there is a bona fide and compelling issue of factual innocence
97 regarding the charges of which the petitioner was convicted. No bona fide and compelling
98 issue of factual innocence exists if the petitioner is merely relitigating facts, issues, or evidence
99 presented in a previous proceeding or if the petitioner is unable to identify with sufficient
100 specificity the nature and reliability of the newly discovered evidence that establishes the
101 petitioner's factual innocence.
102 (d) If the parties stipulate that the evidence establishes that the petitioner is factually
103 innocent, the court may find the petitioner is factually innocent without holding a hearing. If
104 the state will not stipulate that the evidence establishes that the petitioner is factually innocent,
105 no determination of factual innocence may be made by the court without first holding a hearing
106 under this part.
107 (10) The court may not grant a petition for a hearing under this part during the period
108 in which criminal proceedings in the matter are pending before any trial or appellate court,
109 unless stipulated to by the parties.
110 (11) Any victim of a crime that is the subject of a petition under this part, and who has
111 elected to receive notice under Section 77-38-3, shall be notified by the state's attorney of any
112 hearing regarding the petition.
113 (12) A petition to determine factual innocence under this part, or Part 3, Postconviction
114 Testing of DNA, shall be filed separately from any petition for postconviction relief under Part
115 1, General Provisions. Separate petitions may be filed simultaneously in the same court.
116 (13) The procedures governing the filing and adjudication of a petition to determine
117 factual innocence apply to all petitions currently filed or pending in the district court and any
118 new petitions filed on or after June 1, 2012.
119 (14) (a) As used in this Subsection (14) and in Subsection (15):
120 (i) "Married" means the legal marital relationship established between a man and a
121 woman and as recognized by the laws of this state; and
122 (ii) "Spouse" means a person married to the petitioner at the time the petitioner was
123 found guilty of the offense regarding which a petition is filed and who has since then been
124 continuously married to the petitioner until the petitioner's death.
125 (b) A claim for determination of factual innocence under this part is not extinguished
126 upon the death of the petitioner.
127 (c) (i) If any payments are already being made to the petitioner under this part at the
128 time of the death of the petitioner, or if the finding of factual innocence occurs after the death
129 of the petitioner, the payments due under Section 78B-9-405 shall be paid [
131 (ii) Payments cease upon the death of the spouse.
132 (15) The spouse under Subsection (14) forfeits all rights to receive any payment under
133 this part if the spouse is charged with a homicide established by a preponderance of the
134 evidence that meets the elements of any felony homicide offense in Title 76, Chapter 5,
135 Offenses Against the Person, except automobile homicide, applying the same principles of
136 culpability and defenses as in Title 76, Utah Criminal Code, including Title 76, Chapter 2,
137 Principles of Criminal Responsibility.
138 Section 2. Section 78B-9-405 is amended to read:
139 78B-9-405. Judgment and assistance payment.
140 (1) As used in this section:
141 (a) "Felony" means a criminal offense classified as a felony under Title 76, Chapter 3,
142 Punishments, or conduct that would constitute a felony if committed in Utah.
143 (b) "Petitioner" means a United States citizen or an individual who was otherwise
144 lawfully present in this country at the time of the incident that gave rise to the underlying
147 Postconviction Testing of DNA, or under this part, and if the petitioner has served a period of
148 incarceration, the court shall order that[
149 petitioner receive for each year or portion of a year the petitioner was incarcerated, up to a
150 maximum of 15 years, the monetary equivalent of the average annual nonagricultural payroll
151 wage in Utah, as determined by the data most recently published by the Department of
152 Workforce Services at the time of the petitioner's release from prison.
157 (b) The court's determination of the monetary equivalent of the average annual
158 nonagricultural payroll wage shall be included in the order declaring that the petitioner is
159 factually innocent.
160 (3) If a court orders that a petitioner is to receive payment under Subsection (2):
161 (a) [
162 Reparations Fund to the petitioner within 45 days of the court order under Subsection [
163 an initial sum equal to either 20% of the total financial assistance payment as determined under
164 Subsection [
165 not to exceed the total amount owed[
166 (b) [
167 and no later than the next general session following the issuance of the court order under
168 Subsection [
169 (i) to the Crime Victim Reparations Fund, the amount that was paid out of the fund
170 under Subsection [
171 (ii) to the State Commission on Criminal and Juvenile Justice, as a separate line item,
172 the amount ordered by the court for payments under Subsection [
173 reimbursed to the Crime Victim Reparations Fund under Subsection [
177 (c) the State Commission on Criminal and Juvenile Justice shall pay the amount
178 ordered by the court under Subsection (2), minus the amount paid by the Utah Office for
179 Victims of Crime under Subsection (3)(a), to the petitioner:
180 (i) quarterly on or before the last day of the month next succeeding each calendar
181 quarterly period; or
182 (ii) in one lump sum payment no later than the next succeeding July 31 after the day on
183 which the court ordered the payment.
184 (4) (a) For a payment under Subsection (3)(c):
185 (i) the petitioner shall choose, within 90 days after the day on which the payment under
186 Subsection (3)(a) is made, whether the payment is disbursed under Subsection (3)(c)(i) or (ii);
188 (ii) the State Commission on Criminal and Juvenile Justice shall disburse the payment
189 in accordance with the petitioner's choice under Subsection (4)(a)(i).
190 (b) If the petitioner fails to make a choice under Subsection (4)(a)(i) within 90 days
191 after the day on which the payment under Subsection (3)(a) is made, the State Commission on
192 Criminal and Juvenile Justice shall pay the amount under Subsection (3)(c) in accordance with
193 Subsection (3)(c)(i).
194 (c) (i) If a court ordered a petitioner to receive a payment under this section on or
195 before May 5, 2021, the petitioner may request that the State Commission on Criminal and
196 Juvenile Justice disburse the remaining balance of the payment owed to the petitioner under
197 Subsection (3)(c) in one lump sum payment.
198 (ii) If a petitioner submits a request under Subsection (4)(c)(i), the State Commission
199 on Criminal and Juvenile Justice shall disburse the remaining balance of the payment owed to
200 the petitioner in one lump sum payment.
203 for the payments;
205 after the initial payment under Subsection [
207 has been paid no later than 10 years after the effective date of the appropriation made under
208 Subsection [
210 that the period of incarceration for which the petitioner seeks payment was attributable to a
211 separate and lawful conviction.
212 (b) [
213 (i) be tolled upon the commencement of any period of incarceration due to the
214 petitioner's subsequent conviction of a felony [
215 (ii) resume upon the conclusion of that period of incarceration.
219 (c) The reduction of payments [
220 of payments pursuant to Subsection [
221 finds a petitioner to be factually innocent under Part 3, Postconviction Testing of DNA, or this
224 the [
225 of the conviction of the crime for which that [
226 innocent [
227 and that [
228 incarceration on the prior conviction.
229 (b) Ineligibility for any payments [
230 Subsection (7) shall be determined by the same court that finds [
231 factually innocent under Part 3, Postconviction Testing of DNA, or this part.
233 (a) are not subject to any Utah state taxes; and
234 (b) may not be offset by any expenses incurred by the state or any political subdivision
235 of the state, including expenses incurred to secure the petitioner's custody, or to feed, clothe, or
236 provide medical services for the petitioner.
238 Postconviction Testing of DNA, or this part, the court shall also:
239 (a) issue an order of expungement of the petitioner's criminal record for all acts in the
240 charging document upon which the payment under this part is based; and
241 (b) provide a letter to the petitioner explaining that the petitioner's conviction has been
242 vacated on the grounds of factual innocence and indicating that the petitioner did not commit
243 the crime or crimes for which the petitioner was convicted and was later found to be factually
244 innocent under Part 3, Postconviction Testing of DNA, or this part.
246 Testing of DNA, or this part shall have access to the same services and programs available to
247 Utah citizens generally as though the conviction for which the petitioner was found to be
248 factually innocent had never occurred.
250 resolution of the petitioner's claims on the specific issue of factual innocence.
251 (b) Pre-judgment interest may not be awarded in addition to the payments provided
252 under this part.