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7 LONG TITLE
8 General Description:
9 This bill concerns penalties and evidence relating to property and financial offenses.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ requires the Sentencing Commission to create and publish for public comment
14 guidelines relating to certain financial and property offenses;
15 ▸ increases the penalty for a violation of a written false statement on a financial
16 declaration completed by a defendant;
17 ▸ provides that a prosecuting attorney may subpoena certain information regarding
18 property that may be necessary to satisfy a future restitution order, and that a court
19 may consider this information when establishing a defendant's payment schedule on
20 a criminal accounts receivable; and
21 ▸ makes technical and conforming changes.
22 Money Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None
26 Utah Code Sections Affected:
27 AMENDS:
28 63G-12-402, as last amended by Laws of Utah 2021, Chapter 402
29 63M-7-404, as last amended by Laws of Utah 2021, Chapter 173
30 76-8-504, as enacted by Laws of Utah 1973, Chapter 196
31 77-32b-103, as enacted by Laws of Utah 2021, Chapter 260
32 77-38b-204, as renumbered and amended by Laws of Utah 2021, Chapter 260
33 77-38b-402, as renumbered and amended by Laws of Utah 2021, Chapter 260
34
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 63G-12-402 is amended to read:
37 63G-12-402. Receipt of state, local, or federal public benefits -- Verification --
38 Exceptions -- Fraudulently obtaining benefits -- Criminal penalties -- Annual report.
39 (1) (a) Except as provided in Subsection (3) or when exempted by federal law, an
40 agency or political subdivision of the state shall verify the lawful presence in the United States
41 of an individual at least 18 years [
42 (i) a state or local public benefit as defined in 8 U.S.C. Sec. 1621; or
43 (ii) a federal public benefit as defined in 8 U.S.C. Sec. 1611, that is administered by an
44 agency or political subdivision of this state.
45 (b) For purpose of a license issued under Title 58, Chapter 55, Utah Construction
46 Trades Licensing Act, to an applicant that is an unincorporated entity, the Department of
47 Commerce shall verify in accordance with this Subsection (1) the lawful presence in the United
48 States of each individual who:
49 (i) owns an interest in the contractor that is an unincorporated entity; and
50 (ii) engages, or will engage, in a construction trade in Utah as an owner of the
51 contractor described in Subsection (1)(b)(i).
52 (2) This section shall be enforced without regard to race, religion, gender, ethnicity, or
53 national origin.
54 (3) Verification of lawful presence under this section is not required for:
55 (a) any purpose for which lawful presence in the United States is not restricted by law,
56 ordinance, or regulation;
57 (b) assistance for health care items and services that:
58 (i) are necessary for the treatment of an emergency medical condition, as defined in 42
59 U.S.C. Sec. 1396b(v)(3), of the individual involved; and
60 (ii) are not related to an organ transplant procedure;
61 (c) short-term, noncash, in-kind emergency disaster relief;
62 (d) public health assistance for immunizations with respect to immunizable diseases
63 and for testing and treatment of symptoms of communicable diseases whether or not the
64 symptoms are caused by the communicable disease;
65 (e) programs, services, or assistance such as soup kitchens, crisis counseling and
66 intervention, and short-term shelter, specified by the United States Attorney General, in the
67 sole and unreviewable discretion of the United States Attorney General after consultation with
68 appropriate federal agencies and departments, that:
69 (i) deliver in-kind services at the community level, including through public or private
70 nonprofit agencies;
71 (ii) do not condition the provision of assistance, the amount of assistance provided, or
72 the cost of assistance provided on the income or resources of the individual recipient; and
73 (iii) are necessary for the protection of life or safety;
74 (f) the exemption for paying the nonresident portion of total tuition as set forth in
75 Section 53B-8-106;
76 (g) an applicant for a license under Section 61-1-4, if the applicant:
77 (i) is registered with the Financial Industry Regulatory Authority; and
78 (ii) files an application with the state Division of Securities through the Central
79 Registration Depository;
80 (h) a state public benefit to be given to an individual under Title 49, Utah State
81 Retirement and Insurance Benefit Act;
82 (i) a home loan that will be insured, guaranteed, or purchased by:
83 (i) the Federal Housing Administration, the Veterans Administration, or any other
84 federal agency; or
85 (ii) an enterprise as defined in 12 U.S.C. Sec. 4502;
86 (j) a subordinate loan or a grant that will be made to an applicant in connection with a
87 home loan that does not require verification under Subsection (3)(i);
88 (k) an applicant for a license issued by the Department of Commerce or individual
89 described in Subsection (1)(b), if the applicant or individual provides the Department of
90 Commerce:
91 (i) certification, under penalty of perjury, that the applicant or individual is:
92 (A) a United States citizen;
93 (B) a qualified alien as defined in 8 U.S.C. Sec. 1641; or
94 (C) lawfully present in the United States; and
95 (ii) (A) the number assigned to a driver license or identification card issued under Title
96 53, Chapter 3, Uniform Driver License Act; or
97 (B) the number assigned to a driver license or identification card issued by a state other
98 than Utah if, as part of issuing the driver license or identification card, the state verifies an
99 individual's lawful presence in the United States; and
100 (l) an applicant for:
101 (i) an Opportunity scholarship described in Title 53B, Chapter 8, Part 2, Regents'
102 Scholarship Program;
103 (ii) a New Century scholarship described in Section 53B-8-105;
104 (iii) a promise scholarship described in Section 53B-8-303; or
105 (iv) a scholarship:
106 (A) for an individual who is a graduate of a high school located within Utah; and
107 (B) administered by an institution of higher education as defined in Section 53B-2-101.
108 (4) (a) An agency or political subdivision required to verify the lawful presence in the
109 United States of an applicant under this section shall require the applicant to certify under
110 penalty of perjury that:
111 (i) the applicant is a United States citizen; or
112 (ii) the applicant is:
113 (A) a qualified alien as defined in 8 U.S.C. Sec. 1641; and
114 (B) lawfully present in the United States.
115 (b) The certificate required under this Subsection (4) shall include a statement advising
116 the signer that providing false information subjects the signer to penalties for perjury.
117 (5) An agency or political subdivision shall verify a certification required under
118 Subsection (4)(a)(ii) through the federal SAVE program.
119 (6) (a) An individual who knowingly and willfully makes a false, fictitious, or
120 fraudulent statement or representation in a certification under Subsection (3)(k) or (4) is subject
121 to the criminal penalties applicable in this state for:
122 (i) making a written false statement under [
123 and
124 (ii) fraudulently obtaining:
125 (A) public assistance program benefits under Sections 76-8-1205 and 76-8-1206; or
126 (B) unemployment compensation under Section 76-8-1301.
127 (b) If the certification constitutes a false claim of United States citizenship under 18
128 U.S.C. Sec. 911, the agency or political subdivision shall file a complaint with the United
129 States Attorney General for the applicable district based upon the venue in which the
130 application was made.
131 (c) If an agency or political subdivision receives verification that a person making an
132 application for a benefit, service, or license is not a qualified alien, the agency or political
133 subdivision shall provide the information to the Office of the Attorney General unless
134 prohibited by federal mandate.
135 (7) An agency or political subdivision may adopt variations to the requirements of this
136 section that:
137 (a) clearly improve the efficiency of or reduce delay in the verification process; or
138 (b) provide for adjudication of unique individual circumstances where the verification
139 procedures in this section would impose an unusual hardship on a legal resident of Utah.
140 (8) It is unlawful for an agency or a political subdivision of this state to provide a state,
141 local, or federal benefit, as defined in 8 U.S.C. Sec. 1611 and 1621, in violation of this section.
142 (9) A state agency or department that administers a program of state or local public
143 benefits shall:
144 (a) provide an annual report to the governor, the president of the Senate, and the
145 speaker of the House regarding its compliance with this section; and
146 (b) (i) monitor the federal SAVE program for application verification errors and
147 significant delays;
148 (ii) provide an annual report on the errors and delays to ensure that the application of
149 the federal SAVE program is not erroneously denying a state or local benefit to a legal resident
150 of the state; and
151 (iii) report delays and errors in the federal SAVE program to the United States
152 Department of Homeland Security.
153 Section 2. Section 63M-7-404 is amended to read:
154 63M-7-404. Purpose -- Duties.
155 (1) The purpose of the commission is to develop guidelines and propose
156 recommendations to the Legislature, the governor, and the Judicial Council regarding:
157 (a) the sentencing and release of juvenile and adult offenders in order to:
158 (i) respond to public comment;
159 (ii) relate sentencing practices and correctional resources;
160 (iii) increase equity in criminal sentencing;
161 (iv) better define responsibility in criminal sentencing; and
162 (v) enhance the discretion of sentencing judges while preserving the role of the Board
163 of Pardons and Parole and the Youth Parole Authority;
164 (b) the length of supervision of adult offenders on probation or parole in order to:
165 (i) increase equity in criminal supervision lengths;
166 (ii) respond to public comment;
167 (iii) relate the length of supervision to an offender's progress;
168 (iv) take into account an offender's risk of offending again;
169 (v) relate the length of supervision to the amount of time an offender has remained
170 under supervision in the community; and
171 (vi) enhance the discretion of the sentencing judges while preserving the role of the
172 Board of Pardons and Parole;
173 (c) appropriate, evidence-based probation and parole supervision policies and services
174 that assist individuals in successfully completing supervision and reduce incarceration rates
175 from community supervision programs while ensuring public safety, including:
176 (i) treatment and intervention completion determinations based on individualized case
177 action plans;
178 (ii) measured and consistent processes for addressing violations of conditions of
179 supervision;
180 (iii) processes that include using positive reinforcement to recognize an individual's
181 progress in supervision;
182 (iv) engaging with social services agencies and other stakeholders who provide
183 services that meet offender needs; and
184 (v) identifying community violations that may not warrant revocation of probation or
185 parole.
186 (2) (a) The commission shall modify the sentencing guidelines and supervision length
187 guidelines for adult offenders to implement the recommendations of the Commission on
188 Criminal and Juvenile Justice for reducing recidivism.
189 (b) The modifications under Subsection (2)(a) shall be for the purposes of protecting
190 the public and ensuring efficient use of state funds.
191 (3) (a) The commission shall modify the criminal history score in the sentencing
192 guidelines for adult offenders to implement the recommendations of the Commission on
193 Criminal and Juvenile Justice for reducing recidivism.
194 (b) The modifications to the criminal history score under Subsection (3)(a) shall
195 include factors in an offender's criminal history that are relevant to the accurate determination
196 of an individual's risk of offending again.
197 (4) (a) The commission shall establish sentencing guidelines for periods of
198 incarceration for individuals who are on probation and:
199 (i) who have violated one or more conditions of probation; and
200 (ii) whose probation has been revoked by the court.
201 (b) The guidelines shall consider the seriousness of the violation of the conditions of
202 probation, the probationer's conduct while on probation, and the probationer's criminal history.
203 (5) (a) The commission shall establish sentencing guidelines for periods of
204 incarceration for individuals who are on parole and:
205 (i) who have violated a condition of parole; and
206 (ii) whose parole has been revoked by the Board of Pardons and Parole.
207 (b) The guidelines shall consider the seriousness of the violation of the conditions of
208 parole, the individual's conduct while on parole, and the individual's criminal history.
209 (6) The commission shall establish graduated and evidence-based processes to
210 facilitate the prompt and effective response to an individual's progress in or violation of the
211 terms of probation or parole by the adult probation and parole section of the Department of
212 Corrections, or other supervision services provider, in order to implement the
213 recommendations of the Commission on Criminal and Juvenile Justice for reducing recidivism
214 and incarceration, including:
215 (a) responses to be used when an individual violates a condition of probation or parole;
216 (b) responses to recognize positive behavior and progress related to an individual's case
217 action plan;
218 (c) when a violation of a condition of probation or parole should be reported to the
219 court or the Board of Pardons and Parole; and
220 (d) a range of sanctions that may not exceed a period of incarceration of more than:
221 (i) three consecutive days; and
222 (ii) a total of five days in a period of 30 days.
223 (7) The commission shall establish graduated incentives to facilitate a prompt and
224 effective response by the adult probation and parole section of the Department of Corrections
225 to an offender's:
226 (a) compliance with the terms of probation or parole; and
227 (b) positive conduct that exceeds those terms.
228 (8) (a) The commission shall establish guidelines, including sanctions and incentives,
229 to appropriately respond to negative and positive behavior of juveniles who are:
230 (i) nonjudicially adjusted;
231 (ii) placed on diversion;
232 (iii) placed on probation;
233 (iv) placed on community supervision;
234 (v) placed in an out-of-home placement; or
235 (vi) placed in a secure care facility.
236 (b) In establishing guidelines under this Subsection (8), the commission shall consider:
237 (i) the seriousness of the negative and positive behavior;
238 (ii) the juvenile's conduct post-adjudication; and
239 (iii) the delinquency history of the juvenile.
240 (c) The guidelines shall include:
241 (i) responses that are swift and certain;
242 (ii) a continuum of community-based options for juveniles living at home;
243 (iii) responses that target the individual's criminogenic risk and needs; and
244 (iv) incentives for compliance, including earned discharge credits.
245 (9) The commission shall establish supervision length guidelines in accordance with
246 this section before October 1, 2018.
247 (10) (a) The commission shall create sentencing guidelines and supervision length
248 guidelines for the following financial and property offenses for which a pecuniary loss to a
249 victim may exceed $5,000:
250 (i) securities fraud, Sections 61-1-1 and 61-1-21;
251 (ii) sale by an unlicensed broker-dealer, agent, investment adviser, or investment
252 adviser representative, Sections 61-1-3 and 61-1-21;
253 (iii) offer or sale of unregistered security, Sections 61-1-7 and 61-1-21;
254 (iv) abuse or exploitation of a vulnerable adult under Title 76, Chapter 5, Part 1,
255 Assault and Related Offenses;
256 (v) arson, Section 76-6-102;
257 (vi) burglary, Section 76-6-202;
258 (vii) theft, Section 76-6-412;
259 (viii) forgery, Section 76-6-501;
260 (ix) unlawful dealing of property by a fiduciary, Section 76-6-513;
261 (x) fraudulent insurance act, Section 76-6-521;
262 (xi) computer crimes, Section 76-6-703;
263 (xii) mortgage fraud, Sections 76-6-1203 and 76-6-1204;
264 (xiii) pattern of unlawful activity, Sections 76-10-1603 and 76-10-1603.5;
265 (xiv) communications fraud, Section 76-10-1801;
266 (xv) money laundering, Section 76-10-1904; and
267 (xvi) other offenses in the discretion of the commission.
268 (b) The guidelines described in Subsection (10)(a) shall include a sentencing matrix
269 with proportionate escalating sanctions based on the amount of a victim's loss.
270 (c) On or before August 1, 2022, the commission shall publish for public comment the
271 guidelines described in Subsection (10)(a).
272 Section 3. Section 76-8-504 is amended to read:
273 76-8-504. Written false statement.
274 [
275 (1) [
276 (a) the actor makes a statement that the actor does not believe to be true on or [
277
278 made therein are punishable; or
279 [
280 public servant's official function, [
281 [
282 believe to be true; [
283 [
284 [
285
286 [
287 the actor knows to be lacking in authenticity; or
288 [
289 boundary mark, or other object [
290 (2) (a) Except as provided in Subsection (2)(b), a violation of Subsection (1) is a class
291 B misdemeanor.
292 (b) A violation of Subsection (1) is a third degree felony if the false statement is on a
293 financial declaration described in Section 77-38b-204.
294 [
295 this section if the actor retracts the falsification before it becomes manifest that the falsification
296 was or would be exposed.
297 Section 4. Section 77-32b-103 is amended to read:
298 77-32b-103. Establishment of a criminal accounts receivable -- Responsibility --
299 Payment schedule -- Delinquency or default.
300 (1) (a) Except as provided in Subsection (1)(b) and (c), at the time of sentencing or
301 acceptance of a plea in abeyance, the court shall enter an order to establish a criminal accounts
302 receivable for the defendant.
303 (b) The court is not required to create a criminal accounts receivable for the defendant
304 under Subsection (1)(a) if the court finds that the defendant does not owe restitution and there
305 are no other fines or fees to be assessed against the defendant.
306 (c) Subject to Subsection 77-38b-205(5), if the court does not create a criminal
307 accounts receivable for a defendant under Subsection (1)(a), the court shall enter an order to
308 establish a criminal accounts receivable for the defendant at the time the court enters an order
309 for restitution under Section 77-38b-205.
310 (2) After establishing a criminal accounts receivable for a defendant, the court shall:
311 (a) if a prison sentence is imposed and not suspended for the defendant:
312 (i) accept any payment for the criminal accounts receivable that is tendered on the date
313 of sentencing; and
314 (ii) transfer the responsibility of receiving, distributing, and processing payments for
315 the criminal accounts receivable to the Office of State Debt Collection; and
316 (b) for all other cases:
317 (i) retain the responsibility for receiving, processing, and distributing payments for the
318 criminal accounts receivable until the court enters a civil accounts receivable or civil judgment
319 of restitution on the civil judgment docket under Subsection 77-18-114(1) or (2); and
320 (ii) record each payment by the defendant on the case docket.
321 (c) For a criminal accounts receivable that a court retains responsibility for receiving,
322 processing, and distributing payments under Subsection (2)(b)(i), the Judicial Council may
323 establish rules to require a defendant to pay the cost, or a portion of the cost, that is charged by
324 a financial institution for the use of a credit or debit card by the defendant to make payments
325 towards the criminal accounts receivable.
326 (3) (a) Upon entering an order for a criminal accounts receivable, the court shall
327 establish a payment schedule for the defendant to make payments towards the criminal
328 accounts receivable.
329 (b) In establishing the payment schedule for the defendant, the court shall consider:
330 (i) the needs of the victim if the criminal accounts receivable includes an order for
331 restitution under Section 77-38b-205;
332 (ii) the financial resources of the defendant, as disclosed in the financial declaration
333 under Section 77-38b-204 or in evidence obtained by subpoena under Subsection
334 77-38b-402(1)(b);
335 (iii) the burden that the payment schedule will impose on the defendant regarding the
336 other reasonable obligations of the defendant;
337 (iv) the ability of the defendant to pay restitution on an installment basis or on other
338 conditions fixed by the court;
339 (v) the rehabilitative effect on the defendant of the payment of restitution and method
340 of payment; and
341 (vi) any other circumstance that the court determines is relevant.
342 (4) A payment schedule for a criminal accounts receivable does not limit the ability of
343 a judgment creditor to pursue collection by any means allowable by law.
344 (5) If the court orders restitution under Section 77-38b-205, or makes another financial
345 decision, after sentencing that increases the total amount owed in a defendant's case, the
346 defendant's criminal accounts receivable balance shall be adjusted to include any new amount
347 ordered by the court.
348 (6) (a) If a defendant is incarcerated in a county jail or a secure correctional facility, as
349 defined in Section 64-13-1, or the defendant is involuntarily committed under Section
350 62A-15-631:
351 (i) all payments for a payment schedule shall be suspended for the period of time that
352 the defendant is incarcerated or involuntarily committed, unless the court, or the board if the
353 defendant is under the jurisdiction of the board, expressly orders the defendant to make
354 payments according to the payment schedule; and
355 (ii) the defendant shall provide the court with notice of the incarceration or involuntary
356 commitment.
357 (b) A suspension under Subsection (6)(a) shall remain in place for 60 days after the day
358 in which the defendant is released from incarceration or commitment.
359 Section 5. Section 77-38b-204 is amended to read:
360 77-38b-204. Financial declaration by defendant.
361 (1) (a) The Judicial Council shall design and publish a financial declaration form to be
362 completed by a defendant before the sentencing court establishes a payment schedule under
363 Section 77-38b-205.
364 (b) The financial declaration form shall:
365 (i) require a defendant to disclose all assets, income, and financial liabilities of the
366 defendant, including:
367 (A) real property;
368 (B) vehicles;
369 (C) precious metals or gems;
370 (D) jewelry with a value of $1,000 or more;
371 (E) other personal property with a value of $1,000 or more;
372 (F) the balance of any bank account and the name of the financial institution for the
373 bank account;
374 (G) cash;
375 (H) salary, wages, commission, tips, and business income, including the name of any
376 employer or entity from which the defendant receives a salary, wage, commission, tip, or
377 business income;
378 (I) pensions and annuities;
379 (J) intellectual property;
380 (K) accounts receivable;
381 (L) accounts payable;
382 (M) mortgages, loans, and other debts; and
383 (N) restitution that has been ordered, and not fully paid, in other cases; and
384 (ii) state that a false statement made in the financial declaration form is punishable as
385 [
386 (2) After a plea disposition or conviction has been entered but before sentencing, a
387 defendant shall complete the financial declaration form described in Subsection (1).
388 (3) When a civil judgment of restitution or a civil accounts receivable is entered for a
389 defendant on the civil judgment docket under Section 77-18-114, the court shall provide the
390 Office of State Debt Collection with the defendant's financial declaration form.
391 Section 6. Section 77-38b-402 is amended to read:
392 77-38b-402. Preservation of assets.
393 (1) (a) Before, or at the time, a criminal information, indictment charging a violation,
394 or a petition alleging delinquency is filed, or at any time during the prosecution of the case, a
395 prosecuting attorney may, if in the prosecuting attorney's best judgment there is a substantial
396 likelihood that a conviction will be obtained and restitution will be ordered in the case, petition
397 the court to:
398 [
399 [
400 [
401 necessary to satisfy an anticipated order for restitution.
402 (b) A prosecuting attorney may subpoena a document, witness, or other evidence that,
403 in the prosecuting attorney's best judgment, may provide evidence relevant to the property
404 described in Subsection (1)(a)(iii).
405 (2) (a) Upon receiving a request from a prosecuting attorney under Subsection (1)(a),
406 and after notice to a person appearing to have an interest in the property and affording the
407 person an opportunity to be heard, the court may take action as requested by the prosecuting
408 attorney if the court determines:
409 (i) there is probable cause to believe that an offense has been committed and that the
410 defendant committed the offense, and that failure to enter the order will likely result in the
411 property being sold, distributed, exhibited, destroyed, or removed from the jurisdiction of the
412 court, or otherwise be made unavailable for restitution; and
413 (ii) the need to preserve the availability of the property or prevent the property's sale,
414 distribution, exhibition, destruction, or removal through the entry of the requested order
415 outweighs the hardship on any party against whom the order is to be entered.
416 (b) In a hearing conducted in accordance with this section, a court may consider
417 reliable hearsay as defined in Utah Rules of Evidence, Rule 1102.
418 (c) An order for an injunction entered under this section is effective for the period of
419 time given in the order.
420 (3) (a) Upon receiving a request for a temporary restraining order from a prosecuting
421 attorney under this section, a court may enter a temporary restraining order against an owner
422 with respect to specific property without notice or opportunity for a hearing if:
423 (i) the prosecuting attorney demonstrates that there is a substantial likelihood that the
424 property with respect to which the order is sought appears to be necessary to satisfy an
425 anticipated restitution order under this chapter; and
426 (ii) provision of notice would jeopardize the availability of the property to satisfy any
427 judgment or order for restitution.
428 (b) The temporary order in this Subsection (3) expires no later than 10 days after the
429 day on which the temporary order is entered unless extended for good cause shown or the party
430 against whom the temporary order is entered consents to an extension.
431 (4) A hearing concerning an order entered under this section shall be held as soon as
432 possible, and before the expiration of the temporary order.