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8 LONG TITLE
9 General Description:
10 This joint resolution amends the Utah Rules of Criminal Procedure, Rule 8, regarding
11 the appointment of counsel.
12 Highlighted Provisions:
13 This resolution:
14 ▸ amends the Utah Rules of Criminal Procedure, Rule 8, regarding the appointment of
15 counsel in a capital case; and
16 ▸ makes technical and conforming changes.
17 Special Clauses:
18 This resolution provides a contingent effective date.
19 Utah Rules of Criminal Procedure Affected:
20 AMENDS:
21 Rule 8, Utah Rules of Criminal Procedure
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23 Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
24 of the two houses voting in favor thereof:
25 As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
26 rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
27 all members of both houses of the Legislature:
28 Section 1. Rule 8, Utah Rules of Criminal Procedure is amended to read:
29 Rule 8. Appointment of counsel.
30 (a) Right to counsel. A defendant charged with a public offense has the right to
31 self-representation, and if indigent, has the right to court-appointed counsel if the defendant
32 faces any possibility of the deprivation of liberty.
33 (b) [
34 (b) (1) In all cases in which counsel is appointed to represent an indigent defendant
35 who is charged with an offense for [
36 the court [
37 (b) (1) (A) appoint two or more attorneys to represent such defendant [
38 (b) (1) (B) make a finding on the record based on the requirements set forth below that
39 appointed counsel is competent in the trial of [
40 (b) (2) In making [
41 experience of counsel who are under consideration for appointment have met the following
42 minimum requirements:
43 [
44 felony cases within the past four years or twenty-five felony cases total;
45 (b) (2) (B) at least one of the appointed attorneys must have appeared as counsel or
46 co-counsel in [
47 final verdict;
48 [
49 taught within the past five years an approved continuing legal education course or courses at
50 least eight hours of which deal, in substantial part, with the trial of [
51 cases; and
52 [
53 than five years in the active practice of law.
54 (c) [
55 [
56 the court should also consider at least the following factors:
57 (c) (1) whether one or more of the attorneys under consideration have previously
58 appeared as counsel or co-counsel in [
59 (c) (2) the extent to which the attorneys under consideration have sufficient time and
60 support and can dedicate those resources to the representation of the defendant in the [
61 aggravated murder case now pending before the court with undivided loyalty to the defendant;
62 (c) (3) the extent to which the attorneys under consideration have engaged in the active
63 practice of criminal law in the past five years;
64 (c) (4) the diligence, competency, the total workload, and ability of the attorneys being
65 considered; and
66 (c) (5) any other factor which may be relevant to a determination that counsel to be
67 appointed will fairly, efficiently and effectively provide representation to the defendant.
68 (d) [
69 (d) (1) In all cases where an indigent defendant [
70 convicted and sentenced for aggravated murder, the court [
71 (d) (1) (A) appoint one or more attorneys to represent such defendant on appeal [
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73 (d) (1) (B) make a finding that counsel is competent in the appeal of [
74 aggravated murder cases. [
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77 (d) (2) To be found competent to represent an indigent defendant convicted and
78 sentenced for aggravated murder on appeal:
79 [
80 as counsel in at least three felony appeals; and
81 [
82 attended and completed within the past five years an approved continuing legal education
83 course which deals, in substantial part, with the trial or appeal of [
84 cases.
85 (e) Post-conviction cases.
86 (e) (1) In all cases in which counsel is appointed to represent an indigent petitioner
87 pursuant to Utah Code [
88 (e) (1) (A) appoint one or more attorneys to represent such petitioner at post-conviction
89 trial and on post-conviction appeal [
90 (e) (1) (B) make a finding that counsel is qualified to represent persons sentenced to
91 death in post-conviction cases.
92 (e) (2) To be found qualified, the combined experience of the appointed attorneys must
93 meet the following requirements:
94 [
95 in at least three felony or post-conviction appeals;
96 (e) (2) (B) at least one of the appointed attorneys must have appeared as counsel or
97 co-counsel in a post-conviction case at the evidentiary hearing, on appeal, or otherwise
98 demonstrated proficiency in the area of post-conviction litigation;
99 [
100 completed or taught within the past five years an approved continuing legal education course
101 which dealt, in substantial part, with the trial and appeal of death penalty cases or with the
102 prosecution or defense of post-conviction proceedings in death penalty cases;
103 [
104 or verdict three civil jury or felony cases within the past four years or ten cases total; and
105 [
106 not less than five years in the active practice of law.
107 (f) Appointing from appellate roster. When appointing counsel for an indigent
108 defendant on appeal from a court of record, the court must select an attorney from the appellate
109 roster maintained by the Board of Appellate Judges under rule 11-401 of the Utah Rules of
110 Judicial Administration, subject to any exemptions established by that rule.
111 (g) Noncompliance. Mere noncompliance with this rule or failure to follow the
112 guidelines set forth in this rule [
113 appointed counsel ineffectively represented the defendant at trial or on appeal.
114 (h) (1) Cost and [
115 described in [
116 Utah Code.
117 (h) (2) Costs and [
118 paid pursuant to Utah Code [
119 Section 2. Contingent effective date.
120 This resolution takes effect upon approval by a constitutional two-thirds vote of all
121 members elected to each house only if H.B. 147, Death Penalty Modifications (2022 General
122 Session), passes the Legislature and becomes law on May 4, 2022.