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DIVERSION FEES AMENDMENTS

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2021 GENERAL SESSION

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STATE OF UTAH

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Chief Sponsor: Andrew Stoddard

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Senate Sponsor: Kathleen A. Riebe

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7     LONG TITLE
8     General Description:
9          This bill allows a court to assess a diversion fee on a criminal defendant.
10     Highlighted Provisions:
11          This bill:
12          ▸     allows a court to assess a diversion fee on a criminal defendant based on the
13     defendant's ability to pay; and
14          ▸     makes technical and conforming changes.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          77-2-5, as enacted by Laws of Utah 1980, Chapter 15
22     

23     Be it enacted by the Legislature of the state of Utah:
24          Section 1. Section 77-2-5 is amended to read:
25          77-2-5. Diversion agreement -- Negotiation -- Contents.
26          (1) At any time after the filing of an information or indictment and prior to conviction,
27     the prosecuting attorney may, by written agreement with the defendant, filed with the court,
28     and upon approval of the court, divert a defendant to a non-criminal diversion program.
29          (2) A defendant shall be represented by counsel during negotiations for diversion and
30     at the time of execution of any diversion agreement unless [he shall have] the defendant has
31     knowingly and intelligently waived [his] the defendant's right to counsel.
32          (3) The defendant has the right to be represented by counsel at any court hearing
33     relating to a diversion program.
34          (4) [Any] (a) A diversion agreement entered into between the prosecution and the
35     defense and approved by a magistrate shall contain a full, detailed statement of the
36     requirements agreed to by the defendant and the reasons for diversion.
37          (b) A decision by a prosecuting attorney not to divert a defendant is not subject to
38     judicial review.
39          [(5) Diversion programs longer than two years shall not be permitted.]
40          (5) A diversion agreement entered into between the prosecution and the defense and
41     approved by a magistrate may contain an order that the defendant pay a nonrefundable
42     diversion fee that:
43          (a) shall be allocated in the same manner as if paid as a fine for a criminal conviction
44     under Section 78A-5-110 or Section 78A-7-120; and
45          (b) may not exceed the suggested fine listed in the Uniform Fine and Bail Forfeiture
46     Schedule adopted by the Judicial Council.
47          (6) A diversion agreement [shall] may not be approved unless the defendant[, before a
48     magistrate and in the agreement,] knowingly and intelligently waives [his] the defendant's
49     constitutional right to a speedy trial before a magistrate and in the diversion agreement.
50          (7) (a) The court shall, on the defendant's request, consider the defendant's ability to
51     pay a diversion fee before ordering the defendant to pay a diversion fee.
52          (b) The court may:
53          (i) consider any relevant evidence in determining the defendant's ability to pay a
54     diversion fee; and
55          (ii) lower or waive the diversion fee based on that evidence.
56          (8) A diversion program longer than two years is not permitted.