This document includes Senate Committee Amendments incorporated into the bill on Mon, Feb 27, 2023 at 9:27 AM by lpoole.
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7 LONG TITLE
8 General Description:
9 This bill concerns offenders with a mental condition.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines and modifies terms;
13 ▸ modifies when certain defendants are eligible for a criminal defense based on a
14 mental condition;
15 ▸ modifies when certain defendants may receive probation, supervised release, or a
16 reduction to a lower category of offense under specified circumstances;
17 ▸ changes "guilty with a mental illness" to "guilty with a mental condition";
18 ▸ amends eligibility, procedures, and requirements concerning a plea of guilty with a
19 mental condition;
20 ▸ amends certain provisions concerning the sentencing and commitment of an
21 offender with a mental condition; and
22 ▸ makes technical and conforming changes.
23 Money Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 This bill provides revisor instructions.
27 Utah Code Sections Affected:
28 AMENDS:
29 53-10-208.1, as last amended by Laws of Utah 2021, Chapter 159
30 53-10-403.5, as last amended by Laws of Utah 2020, Chapter 415
31 62A-15-610, as last amended by Laws of Utah 2011, Chapter 366
32 62A-15-623, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
33 Chapter 8
34 62A-15-902, as last amended by Laws of Utah 2011, Chapter 366
35 76-2-305, as last amended by Laws of Utah 2016, Chapter 115
36 76-3-201, as repealed and reenacted by Laws of Utah 2021, Chapter 260 and last
37 amended by Coordination Clause, Laws of Utah 2021, Chapter 261
38 76-3-406, as last amended by Laws of Utah 2022, Chapter 181
39 76-5-205.5, as last amended by Laws of Utah 2022, Chapter 181
40 76-5-303.5, as last amended by Laws of Utah 2022, Chapter 181
41 76-10-1311, as last amended by Laws of Utah 2008, Chapter 382
42 77-13-1, as last amended by Laws of Utah 2011, Chapter 366
43 77-16a-101, as last amended by Laws of Utah 2011, Chapter 366
44 77-16a-102, as last amended by Laws of Utah 2019, Chapter 312
45 77-16a-104, as last amended by Laws of Utah 2011, Chapter 366
46 77-16a-201, as last amended by Laws of Utah 2018, Chapter 334
47 77-16a-202, as last amended by Laws of Utah 2011, Chapter 366
48 77-16a-203, as last amended by Laws of Utah 2011, Chapter 366
49 77-16a-204, as last amended by Laws of Utah 2011, Chapter 366
50 77-16a-205, as last amended by Laws of Utah 2018, Chapter 334
51 77-16a-301, as last amended by Laws of Utah 2019, Chapter 312
52 77-16a-302, as last amended by Laws of Utah 2011, Chapter 366
53 77-16a-304, as last amended by Laws of Utah 2011, Chapter 366
54 77-16a-305, as last amended by Laws of Utah 1993, Chapter 285
55 77-16a-306, as last amended by Laws of Utah 2011, Chapter 366
56 77-27-2, as last amended by Laws of Utah 2021, Chapter 260
57 77-27-5.3, as last amended by Laws of Utah 2011, Chapter 366
58 77-27-10.5, as last amended by Laws of Utah 2011, Chapter 366
59 77-36-1.1, as last amended by Laws of Utah 2021, Chapter 213
60 77-38-302, as last amended by Laws of Utah 2020, Chapter 230
61 77-38b-102, as last amended by Laws of Utah 2022, Chapter 359
62 78A-2-302, as last amended by Laws of Utah 2022, Chapter 272
63 78B-7-901, as enacted by Laws of Utah 2020, Chapter 142
64 80-2-1004, as renumbered and amended by Laws of Utah 2022, Chapter 334
65 REPEALS AND REENACTS:
66 77-16a-103, as last amended by Laws of Utah 2011, Chapter 366
67
68 Be it enacted by the Legislature of the state of Utah:
69 Section 1. Section 53-10-208.1 is amended to read:
70 53-10-208.1. Magistrates and court clerks to supply information.
71 (1) Every magistrate or clerk of a court responsible for court records in this state shall,
72 within 30 days of the disposition and on forms and in the manner provided by the division,
73 furnish the division with information pertaining to:
74 (a) all dispositions of criminal matters, including:
75 (i) guilty pleas;
76 (ii) convictions;
77 (iii) dismissals;
78 (iv) acquittals;
79 (v) pleas held in abeyance;
80 (vi) judgments of not guilty by reason of insanity;
81 (vii) judgments of guilty with a mental [
82 (viii) finding of mental incompetence to stand trial; and
83 (ix) probations granted;
84 (b) orders of civil commitment under the terms of Section 62A-15-631;
85 (c) the issuance, recall, cancellation, or modification of all warrants of arrest or
86 commitment as described in Rule 6, Utah Rules of Criminal Procedure and Section 78B-6-303,
87 within one day of the action and in a manner provided by the division; and
88 (d) protective orders issued after notice and hearing, pursuant to:
89 (i) Title 77, Chapter 36, Cohabitant Abuse Procedures Act;
90 (ii) Title 78B, Chapter 7, Part 4, Dating Violence Protective Orders;
91 (iii) Title 78B, Chapter 7, Part 5, Sexual Violence Protective Orders;
92 (iv) Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders; or
93 (v) Title 78B, Chapter 7, Part 8, Criminal Protective Orders.
94 (2) The court in the county where a determination or finding was made shall transmit a
95 record of the determination or finding to the bureau no later than 48 hours after the
96 determination is made, excluding Saturdays, Sundays, and legal holidays, if an individual is:
97 (a) adjudicated as a mental defective; or
98 (b) involuntarily committed to a mental institution in accordance with Subsection
99 62A-15-631(16).
100 (3) The record described in Subsection (2) shall include:
101 (a) an agency record identifier;
102 (b) the individual's name, sex, race, and date of birth; and
103 (c) the individual's social security number, government issued driver license or
104 identification number, alien registration number, government passport number, state
105 identification number, or FBI number.
106 Section 2. Section 53-10-403.5 is amended to read:
107 53-10-403.5. Definitions.
108 As used in Sections 53-10-403, 53-10-404, 53-10-404.5, 53-10-405, and 53-10-406:
109 (1) "Bureau" means the Bureau of Forensic Services.
110 (2) "Combined DNA Index System" or "CODIS" means the program operated by the
111 Federal Bureau of Investigation to support criminal justice DNA databases and the software
112 used to run the databases.
113 (3) "Conviction" means:
114 (a) a verdict or conviction;
115 (b) a plea of guilty or guilty [
116 (c) a plea of no contest; or
117 (d) the acceptance by the court of a plea in abeyance.
118 (4) "DNA" means deoxyribonucleic acid.
119 (5) "DNA specimen" or "specimen" means a biological sample of a person's saliva or
120 blood, a biological sample from a crime scene, or a sample collected as part of an investigation.
121 (6) "Final judgment" means a judgment, including any supporting opinion, concerning
122 which all appellate remedies have been exhausted or the time for appeal has expired.
123 (7) "Rapid DNA" means the fully automated process of developing a DNA profile.
124 (8) "Violent felony" means any offense under Section 76-3-203.5.
125 Section 3. Section 62A-15-610 is amended to read:
126 62A-15-610. Objectives of state hospital and other facilities -- Persons who may
127 be admitted to state hospital.
128 (1) The objectives of the state hospital and other mental health facilities shall be to care
129 for all persons within this state who are subject to the provisions of this chapter; and to furnish
130 them with the proper attendance, medical treatment, seclusion, rest, restraint, amusement,
131 occupation, and support that is conducive to their physical and mental well-being.
132 (2) Only the following persons may be admitted to the state hospital:
133 (a) persons 18 years [
134 commitment under this part and who have severe mental disorders for whom no appropriate,
135 less restrictive treatment alternative is available;
136 (b) persons under 18 years [
137 under Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and
138 Mental Health, and for whom no less restrictive alternative is available;
139 (c) persons adjudicated and found to be guilty with a mental [
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141 Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition;
142 (d) persons adjudicated and found to be not guilty by reason of insanity who are under
143 a subsequent commitment order because they have a mental illness and are a danger to
144 themselves or others, under Section 77-16a-302;
145 (e) persons found incompetent to proceed under Section 77-15-6;
146 (f) persons who require an examination under Title 77, Utah Code of Criminal
147 Procedure; and
148 (g) persons in the custody of the Department of Corrections, admitted in accordance
149 with Section 62A-15-605.5, giving priority to those persons with severe mental disorders.
150 Section 4. Section 62A-15-623 is amended to read:
151 62A-15-623. Criminal's escape -- Penalty.
152 Any person committed to the state hospital under the provisions of Title 77, Chapter 15,
153 Inquiry into Sanity of Defendant, or [
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155 Condition, who escapes or leaves the state hospital without proper legal authority is guilty of a
156 class A misdemeanor.
157 Section 5. Section 62A-15-902 is amended to read:
158 62A-15-902. Design and operation -- Security.
159 (1) The forensic mental health facility is a secure treatment facility.
160 (2) (a) The forensic mental health facility accommodates the following populations:
161 (i) prison inmates displaying mental illness, as defined in Section 62A-15-602,
162 necessitating treatment in a secure mental health facility;
163 (ii) criminally adjudicated persons found guilty with a mental [
164 guilty with a mental [
165 mental [
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167 Individuals with a Mental Condition;
168 (iii) criminally adjudicated persons undergoing evaluation for competency or found
169 guilty with a mental [
170 the offense under [
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172 Condition, who also have an intellectual disability;
173 (iv) persons undergoing evaluation for competency or found by a court to be
174 incompetent to proceed in accordance with Title 77, Chapter 15, Inquiry into Sanity of
175 Defendant, or not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
176 (v) persons who are civilly committed to the custody of a local mental health authority
177 in accordance with Title 62A, Chapter 15, Part 6, Utah State Hospital and Other Mental Health
178 Facilities, and who may not be properly supervised by the Utah State Hospital because of a lack
179 of necessary security, as determined by the superintendent or the superintendent's designee; and
180 (vi) persons ordered to commit themselves to the custody of the Division of Substance
181 Abuse and Mental Health for treatment at the Utah State Hospital as a condition of probation or
182 stay of sentence pursuant to Title 77, Chapter 18, The Judgment.
183 (b) Placement of an offender in the forensic mental health facility under any category
184 described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the offender's
185 status as established by the court at the time of adjudication.
186 (c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
187 department shall make rules providing for the allocation of beds to the categories described in
188 Subsection (2)(a).
189 (3) The department shall:
190 (a) own and operate the forensic mental health facility;
191 (b) provide and supervise administrative and clinical staff; and
192 (c) provide security staff who are trained as psychiatric technicians.
193 (4) Pursuant to Subsection 62A-15-603(3) the executive director shall designate
194 individuals to perform security functions for the state hospital.
195 Section 6. Section 76-2-305 is amended to read:
196 76-2-305. Mental condition -- Use as a defense -- Influence of alcohol or other
197 substance voluntarily consumed.
198 (1) As used in this section:
199 (a) (i) "Mental condition" means a mental illness or a mental disability that
200 substantially impairs an individual's mental, emotional, or behavioral functioning.
201 (ii) "Mental condition" does not include a mental abnormality that is manifested solely
202 by repeated criminal conduct, anti-social behavior, or a substance use disorder.
203 (b) "Mental disability" means an intellectual disability or a neurodevelopmental
204 disorder as those terms are defined in the current edition of the Diagnostic and Statistical
205 Manual of Mental Disorders published by the American Psychiatric Association.
206 (c) "Mental illness" means the following mental disorders as described in the most
207 recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
208 American Psychiatric Association:
209 (i) schizophrenia spectrum and other psychotic disorders; or
210 (ii) other serious mental health conditions with psychotic features.
211 [
212 defendant, as a result of a mental [
213 element of the offense charged.
214 (b) [
215 in mitigation of the penalty in a capital felony under Section 76-3-207 and may be evidence of
216 special mitigation reducing the level of a criminal homicide or attempted criminal homicide
217 offense under Section 76-5-205.5.
218 [
219 and "diminished mental capacity."
220 [
221 who is under the influence of voluntarily consumed, injected, or ingested alcohol, controlled
222 substances, or volatile substances at the time of the alleged offense is not excused from
223 criminal responsibility on the basis of a mental [
224 caused, triggered, or substantially contributed to the mental [
225 [
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235 Section 7. Section 76-3-201 is amended to read:
236 76-3-201. Sentences or combination of sentences allowed -- Restitution and other
237 costs -- Civil penalties.
238 (1) As used in this section:
239 (a) (i) "Convicted" means:
240 (A) having entered a plea of guilty, a plea of no contest, or a plea of guilty with a
241 mental [
242 (B) having received a judgment of guilty or a judgment of guilty with a mental [
243 condition.
244 (ii) "Convicted" does not include an adjudication of an offense under Section 80-6-701.
245 (b) "Restitution" means the same as that term is defined in Section 77-38b-102.
246 (2) Within the limits provided by this chapter, a court may sentence an individual
247 convicted of an offense to any one of the following sentences, or combination of the following
248 sentences:
249 (a) to pay a fine;
250 (b) to removal or disqualification from public or private office;
251 (c) except as otherwise provided by law, to probation in accordance with Section
252 77-18-105;
253 (d) to imprisonment;
254 (e) on or after April 27, 1992, to life in prison without parole; or
255 (f) to death.
256 (3) (a) This chapter does not deprive a court of authority conferred by law:
257 (i) to forfeit property;
258 (ii) to dissolve a corporation;
259 (iii) to suspend or cancel a license;
260 (iv) to permit removal of an individual from office;
261 (v) to cite for contempt; or
262 (vi) to impose any other civil penalty.
263 (b) A court may include a civil penalty in a sentence.
264 (4) In addition to any other sentence that a sentencing court may impose, the court shall
265 order an individual to:
266 (a) pay restitution in accordance with Title 77, Chapter 38b, Crime Victims Restitution
267 Act;
268 (b) subject to Subsection (5) and Section 77-32b-104, pay the cost of any government
269 transportation if the individual was:
270 (i) transported, in accordance with a court order, from one county to another county
271 within the state;
272 (ii) charged with a felony or a misdemeanor; and
273 (iii) convicted of an offense;
274 (c) subject to Section 77-32b-104, pay the cost expended by an appropriate
275 governmental entity under Section 77-30-24 for the extradition of the individual if the
276 individual:
277 (i) was extradited to this state, under Title 77, Chapter 30, Extradition, to resolve
278 pending criminal charges; and
279 (ii) is convicted of an offense in the county for which the individual is returned;
280 (d) subject to Subsection (6) and Subsections 77-32b-104(2), (3), and (4), pay the cost
281 of medical care, treatment, hospitalization, and related transportation, as described in Section
282 17-50-319, that is provided by a county to the individual while the individual is in a county
283 correctional facility before and after sentencing if:
284 (i) the individual is convicted of an offense that results in incarceration in the county
285 correctional facility; and
286 (ii) (A) the individual is not a state prisoner housed in the county correctional facility
287 through a contract with the Department of Corrections; or
288 (B) the reimbursement does not duplicate the reimbursement under Section 64-13e-104
289 if the individual is a state probationary inmate or a state parole inmate; and
290 (e) pay any other cost that the court determines is appropriate under Section
291 77-32b-104.
292 (5) (a) The court may not order an individual to pay the costs of government
293 transportation under Subsection (4)(b) if:
294 (i) the individual is charged with an infraction or a warrant is issued for an infraction
295 on a subsequent failure to appear; or
296 (ii) the individual was not transported in accordance with a court order.
297 (b) (i) The cost of governmental transportation under Subsection (4)(b) shall be
298 calculated according to the following schedule:
299 (A) $100 for up to 100 miles that an individual is transported;
300 (B) $200 for 100 miles to 200 miles that an individual is transported; and
301 (C) $350 for 200 miles or more that an individual is transported.
302 (ii) The schedule under Subsection (5)(b)(i) applies to each individual transported
303 regardless of the number of individuals transported in a single trip.
304 (6) The cost of medical care under Subsection (4)(d) does not include expenses
305 incurred by the county correctional facility in providing reasonable accommodation for an
306 inmate qualifying as an individual with a disability as defined and covered by the Americans
307 with Disabilities Act, 42 U.S.C. 12101 through 12213, including medical and mental health
308 treatment for the inmate's disability.
309 Section 8. Section 76-3-406 is amended to read:
310 76-3-406. Crimes for which probation, suspension of sentence, lower category of
311 offense, or hospitalization may not be granted.
312 (1) Notwithstanding Sections 76-3-201 and 77-18-105 and [
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314 Commitment and Treatment of Individuals with a Mental Condition, except as provided in
315 Section 76-5-406.5 or Subsection 77-16a-103(6) or (7), probation may not be granted, the
316 execution or imposition of sentence may not be suspended, the court may not enter a judgment
317 for a lower category of offense, and hospitalization may not be ordered, the effect of which
318 would in any way shorten the prison sentence for an individual who commits a capital felony or
319 a first degree felony involving:
320 (a) Section 76-5-202, aggravated murder;
321 (b) Section 76-5-203, murder;
322 (c) Section 76-5-301.1, child kidnaping;
323 (d) Section 76-5-302, aggravated kidnaping;
324 (e) Section 76-5-402, rape, if the individual is sentenced under Subsection
325 76-5-402(3)(b), (3)(c), or (4);
326 (f) Section 76-5-402.1, rape of a child;
327 (g) Section 76-5-402.2, object rape, if the individual is sentenced under Subsection
328 76-5-402.2(3)(b), (3)(c), or (4);
329 (h) Section 76-5-402.3, object rape of a child;
330 (i) Section 76-5-403, forcible sodomy, if the individual is sentenced under Subsection
331 76-5-403(3)(b), (3)(c), or (4);
332 (j) Section 76-5-403.1, sodomy on a child;
333 (k) Section 76-5-404, forcible sexual abuse, if the individual is sentenced under
334 Subsection 76-5-404(3)(b)(i) or (ii);
335 (l) Section 76-5-404.3, aggravated sexual abuse of a child;
336 (m) Section 76-5-405, aggravated sexual assault; or
337 (n) any attempt to commit a felony listed in Subsection (1)(f), (h), or (j).
338 (2) Except for an offense before the district court in accordance with Section 80-6-502
339 or 80-6-504, the provisions of this section do not apply if the sentencing court finds that the
340 defendant:
341 (a) was under 18 years old at the time of the offense; and
342 (b) could have been adjudicated in the juvenile court but for the delayed reporting or
343 delayed filing of the information.
344 Section 9. Section 76-5-205.5 is amended to read:
345 76-5-205.5. Special mitigation for mental condition or provocation -- Burden of
346 proof -- Charge reduction.
347 (1) (a) As used in this section:
348 (i) (A) "Extreme emotional distress" means an overwhelming reaction of anger, shock,
349 or grief that:
350 (I) causes the defendant to be incapable of reflection and restraint; and
351 (II) would cause an objectively reasonable person to be incapable of reflection and
352 restraint.
353 (B) "Extreme emotional distress" does not include:
354 (I) a condition resulting from [
355 (II) distress that is substantially caused by the defendant's own conduct.
356 (ii) "Mental [
357 76-2-305.
358 (b) The terms defined in Section 76-1-101.5 apply to this section.
359 (2) Special mitigation exists when a defendant causes the death of another individual or
360 attempts to cause the death of another individual:
361 (a) (i) under circumstances that are not legally justified, but the defendant acts under a
362 delusion attributable to a mental [
363 (ii) the nature of the delusion is such that, if the facts existed as the defendant believed
364 them to be in the delusional state, those facts would provide a legal justification for the
365 defendant's conduct; and
366 (iii) the defendant's actions, in light of the delusion, are reasonable from the objective
367 viewpoint of a reasonable person; or
368 (b) except as provided in Subsection (4), under the influence of extreme emotional
369 distress that is predominantly caused by the victim's highly provoking act immediately
370 preceding the defendant's actions.
371 (3) A defendant who is under the influence of voluntarily consumed, injected, or
372 ingested alcohol, controlled substances, or volatile substances at the time of the alleged offense
373 may not claim mitigation of the offense under Subsection (2)(a) on the basis of a mental
374 [
375 defendant's mental [
376 (4) A defendant may not claim special mitigation under Subsection (2)(b) if:
377 (a) the time period after the victim's highly provoking act and before the defendant's
378 actions was long enough for an objectively reasonable person to have recovered from the
379 extreme emotional distress;
380 (b) the defendant responded to the victim's highly provoking act by inflicting serious or
381 substantial bodily injury on the victim over a prolonged period, or by inflicting torture on the
382 victim, regardless of whether the victim was conscious during the infliction of serious or
383 substantial bodily injury or torture; or
384 (c) the victim's highly provoking act, described in Subsection (2)(b), is comprised of
385 words alone.
386 (5) If the trier of fact finds that the elements of aggravated murder, attempted
387 aggravated murder, murder, or attempted murder are proven beyond a reasonable doubt, and
388 also finds that the existence of special mitigation under this section is established by a
389 preponderance of the evidence, the court shall enter a judgment of conviction in accordance
390 with Subsection 76-5-202(3)(f)(i), 76-5-202(3)(f)(ii), 76-5-203(3)(b)(i), or 76-5-203(3)(b)(ii),
391 respectively.
392 (6) If the issue of special mitigation is submitted to the trier of fact, the trier of fact
393 shall return a special verdict at the same time as the general verdict, indicating whether it finds
394 special mitigation.
395 (7) (a) If a jury is the trier of fact, a unanimous vote of the jury is required to find
396 special mitigation under this section.
397 (b) If the jury unanimously finds that the elements of an offense described in
398 Subsection (5) are proven beyond a reasonable doubt, and finds special mitigation by a
399 unanimous vote, the jury shall return a general verdict finding the defendant guilty of the
400 charged crime and a special verdict indicating special mitigation.
401 (c) If the jury unanimously finds that the elements of an offense described in
402 Subsection (5) are proven beyond a reasonable doubt but finds by a unanimous vote that
403 special mitigation is not established, or if the jury is unable to unanimously agree that special
404 mitigation is established, the jury shall convict the defendant of the greater offense for which
405 the prosecution proves all the elements beyond a reasonable doubt.
406 Section 10. Section 76-5-303.5 is amended to read:
407 76-5-303.5. Notification of conviction of custodial interference.
408 (1) As used in this section:
409 (a) (i) "Convicted" means a conviction by plea or verdict or adjudication in juvenile
410 court of a crime or offense.
411 (ii) "Convicted" includes:
412 (A) a plea of guilty or guilty [
413 (B) a plea of no contest; and
414 (C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
415 in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
416 accordance with the plea in abeyance agreement.
417 (b) Terms defined in Section 76-1-101.5 apply to this section.
418 (2) If an individual is convicted of custodial interference under Section 76-5-303, the
419 court shall notify the Driver License Division, created in Section 53-3-103, of the conviction,
420 and whether the conviction is for:
421 (a) a class B misdemeanor, under Subsection 76-5-303(3)(a);
422 (b) a class A misdemeanor, under Subsection 76-5-303(3)(b); or
423 (c) a felony, under Subsection 76-5-303(3)(c).
424 Section 11. Section 76-10-1311 is amended to read:
425 76-10-1311. Mandatory testing -- Retention of offender medical file -- Civil
426 liability.
427 (1) A person who has entered a plea of guilty, a plea of no contest, a plea of guilty [
428
429 76-10-1303, or 76-10-1313 shall be required to submit to a mandatory test to determine if the
430 offender is an HIV positive individual. The mandatory test shall be required and conducted
431 prior to sentencing.
432 (2) If the mandatory test has not been conducted prior to sentencing, and the convicted
433 offender is already confined in a county jail or state prison, such person shall be tested while in
434 confinement.
435 (3) The local law enforcement agency shall cause the blood specimen of the offender as
436 defined in Subsection (1) confined in county jail to be taken and tested.
437 (4) The Department of Corrections shall cause the blood specimen of the offender
438 defined in Subsection (1) confined in any state prison to be taken and tested.
439 (5) The local law enforcement agency shall collect and retain in the offender's medical
440 file the following data:
441 (a) the HIV infection test results;
442 (b) a copy of the written notice as provided in Section 76-10-1312;
443 (c) photographic identification; and
444 (d) fingerprint identification.
445 (6) The local law enforcement agency shall classify the medical file as a private record
446 pursuant to Subsection 63G-2-302(1)(b) or a controlled record pursuant to Section 63G-2-304.
447 (7) The person tested shall be responsible for the costs of testing, unless the person is
448 indigent. The costs will then be paid by the local law enforcement agency or the Department of
449 Corrections from the General Fund.
450 (8) (a) The laboratory performing testing shall report test results to only designated
451 officials in the Department of Corrections, the Department of Health, and the local law
452 enforcement agency submitting the blood specimen.
453 (b) Each department or agency shall designate those officials by written policy.
454 (c) Designated officials may release information identifying an offender under Section
455 76-10-1302, 76-10-1303, or 76-10-1313 who has tested HIV positive as provided under
456 Subsection 63G-2-202(1) and for purposes of prosecution pursuant to Section 76-10-1309.
457 (9) (a) An employee of the local law enforcement agency, the Department of
458 Corrections, or the Department of Health who discloses the HIV test results under this section
459 is not civilly liable except when disclosure constitutes fraud or willful misconduct as provided
460 in Section 63G-7-202.
461 (b) An employee of the local law enforcement agency, the Department of Corrections,
462 or the Department of Health who discloses the HIV test results under this section is not civilly
463 or criminally liable, except when disclosure constitutes a knowing violation of Section
464 63G-2-801.
465 (10) When the medical file is released as provided in Section 63G-2-803, the local law
466 enforcement agency, the Department of Corrections, or the Department of Health or its officers
467 or employees are not liable for damages for release of the medical file.
468 Section 12. Section 77-13-1 is amended to read:
469 77-13-1. Kinds of pleas.
470 (1) There are five kinds of pleas to an indictment or information:
471 (a) not guilty;
472 (b) guilty;
473 (c) no contest;
474 (d) not guilty by reason of insanity; and
475 (e) guilty with a mental [
476 (2) An alternative plea of not guilty or not guilty by reason of insanity may be entered.
477 Section 13. Section 77-16a-101 is amended to read:
478
479
480
481 77-16a-101. Definitions.
482 As used in this chapter:
483 (1) "Board" means the Board of Pardons and Parole established under Section 77-27-2.
484 (2) "Department" means the Department of Health and Human Services.
485 (3) "Executive director" means the executive director of the Department of Health and
486 Human Services.
487 (4) "Forensic evaluator" means a licensed mental health professional who is:
488 (a) not involved in the defendant's treatment; and
489 (b) trained and qualified to conduct a guilty with a mental condition evaluation.
490 (5) "Mental condition" means the same as that term is defined in Section 76-2-305.
491 (6) "Mental disability" means the same as that term is defined in Section 76-2-305.
492 [
493 provides mental health services under contract with the division, a local mental health
494 authority, or organization that contracts with a local mental health authority.
495 (8) "Mental health supervision" includes regular and periodic activities including:
496 (a) the review of a defendant's assessment, diagnostic formulation, individual service
497 plan development, and progress toward completion of care; and
498 (b) identification of barriers to a defendant's care, assistance in removing barriers to a
499 defendant's care, continuation of services to a defendant, authorization of care for a defendant,
500 and the observation of the delivery of clinical care to a defendant.
501 [
502 76-2-305.
503 [
504 been adjudicated guilty with a mental [
505
506 (11) "Secure setting" means a jail, prison, or locked inpatient medical facility approved
507 by the department.
508 [
509 Section 14. Section 77-16a-102 is amended to read:
510 77-16a-102. Jury instructions.
511 (1) If a defendant asserts a defense of not guilty by reason of insanity, the court shall
512 instruct the jury that the jury may find the defendant:
513 (a) guilty;
514 (b) guilty with a mental [
515 (c) guilty of a lesser offense;
516 (d) guilty of a lesser offense with a mental [
517 (e) not guilty by reason of insanity; or
518 (f) not guilty.
519 (2) (a) When a defendant asserts a mental defense pursuant to Section 76-2-305 or
520 asserts special mitigation reducing the level of an offense pursuant to Subsection
521 76-5-205.5(2)(a), or when the evidence raises the issue and either party requests the instruction,
522 the court shall instruct the jury that if the jury finds a defendant guilty by proof beyond a
523 reasonable doubt of a charged offense or lesser included offense, the jury shall also return a
524 special verdict indicating whether the jury finds that the defendant had a mental [
525 condition at the time of the offense.
526 (b) If the jury finds the defendant guilty of the charged offense by proof beyond a
527 reasonable doubt, and by special verdict finds the defendant had a mental [
528 the time of the offense, the jury shall return the general verdict of "guilty with a mental [
529 condition at the time of the offense."
530 (c) If the jury finds the defendant guilty of a lesser offense by proof beyond a
531 reasonable doubt, and by special verdict finds the defendant had a mental [
532 the time of the offense, the jury shall return the general verdict of "guilty of a lesser offense
533 with a mental [
534 (d) If the jury finds the defendant guilty of the charged offense or a lesser included
535 offense and does not find that the defendant had a mental [
536 offense, the jury shall return a verdict of "guilty" of the offense, along with the special verdict
537 form indicating that the jury did not find that the defendant had a mental [
538 the time of the offense.
539 (e) The special verdict shall be returned by the jury at the same time as the general
540 verdict, to indicate the basis for the jury's general verdict.
541 (3) (a) In determining whether a defendant should be found guilty with a mental
542 [
543 proof applicable to a finding of mental [
544 evidence.
545 (b) The court shall also instruct the jury that the standard of preponderance of the
546 evidence does not apply to the elements establishing a defendant's guilt, and that the proof of
547 the elements establishing a defendant's guilt of an offense must be proven beyond a reasonable
548 doubt.
549 (4) (a) When special mitigation based on extreme emotional distress is at issue
550 pursuant to Subsection 76-5-205.5(2)(b), the jury shall, in addition to the jury's general verdict,
551 return a special verdict.
552 (b) The special verdict shall be returned by the jury at the same time as the general
553 verdict, to indicate the basis for the jury's general verdict.
554 Section 15. Section 77-16a-103 is repealed and reenacted to read:
555 77-16a-103. Plea of guilty with a mental condition-- Procedures -- Sentencing --
556 Reduction -- Costs.
557 (1) (a) (i) If a defendant wishes to enter a plea of guilty with a mental condition, the
558 parties may stipulate as to:
559 (A) whether the defendant had a mental condition at the time of the commission of the
560 offense; and
561 (B) whether the defendant could benefit from supervision or treatment.
562 (ii) If the parties stipulate as described in Subsection (1)(a)(i), the court shall enter
563 findings consistent with the parties' stipulation if the stipulation is supported by sufficient
564 evidence.
565 (b) If the parties do not stipulate to Subsection (1)(a)(i), the court shall hold a hearing
566 and determine, by clear and convincing evidence:
567 (i) whether the defendant had a mental condition at the time of the commission of the
568 offense; and
569 (ii) whether the defendant could benefit from supervision or treatment.
570 (c) After reviewing the stipulation described in Subsection (1)(a)(i) or conducting a
571 hearing under Subsection (1)(b):
572 (i) if the court finds that the defendant had a mental condition at the time of the
573 offense, the court shall accept the defendant's plea of guilty with a mental condition; or
574 (ii) if the court finds that the defendant did not have a mental condition at the time of
575 the offense, the court may not accept the defendant's plea of guilty with a mental condition.
576 (2) (a) If a defendant wishes to enter a plea of guilty with a mental condition for a
577 felony offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
578 hearing described in Subsection (1)(b), the court may order the defendant to submit to an
579 examination, which may be conducted only by a forensic evaluator appointed by the
580 department, to determine:
581 (i) whether the defendant had a mental condition at the time of the commission of the
582 offense;
583 (ii) whether the defendant could benefit from supervision or treatment; or
584 (iii) whether the defendant currently is competent to enter a plea.
585 (b) (i) If a defendant wishes to enter a plea of guilty with a mental condition for a
586 misdemeanor offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
587 hearing described in Subsection (1)(b), the court may order the defendant to submit to an
588 examination by a forensic evaluator.
589 (ii) Unless otherwise ordered by the court, the examination described in Subsection
590 (2)(b)(i) shall determine:
591 (A) whether the defendant had a mental condition at the time of the commission of the
592 offense;
593 (B) whether the defendant could benefit from supervision or treatment; or
594 (C) whether the defendant currently is competent to enter a plea.
595 (3) If a defendant relies on a private mental health evaluation in support of the
596 defendant's plea of guilty with a mental condition and the parties do not stipulate to Subsection
597 (1)(a)(i), upon the request of the prosecutor before the hearing described in Subsection (1)(b),
598 the court shall order the defendant to submit to an examination by:
599 (a) the department if the offense is a felony; or
600 (b) the department or a forensic evaluator if the offense is a misdemeanor.
601 (4) If a court finds that a defendant was guilty with a mental condition at the time of
602 the offense in accordance with Subsection (1)(c)(i) but would not benefit from available
603 supervision or treatment, the court shall hold a sentencing hearing within 45 days of the entry
604 of the defendant's plea of guilty with a mental condition.
605 (5) (a) If a court finds that a defendant had a mental condition at the time of the
606 commission of the offense, the defendant could benefit from supervision or treatment, and has
607 entered a plea of guilty with a mental condition in accordance with Subsection (1)(c)(i), the
608 court:
609 (i) shall order:
610 (A) the department to provide a treatment assessment of the defendant and to submit to
611 the court treatment recommendations for the defendant; or
612 (B) the defendant to arrange for a treatment assessment of the defendant with a private
613 provider and for the private provider to submit to the court treatment recommendations for the
614 defendant;
615 (ii) shall schedule a treatment review hearing within 30 days after the day on which the
616 court entered the plea of guilty with a mental condition; and
617 (iii) may defer sentencing for up to one year in accordance with Subsection (6), if the
618 defendant consents to a deferred sentence.
619 (b) At the treatment review hearing described in Subsection (5)(a)(ii), the court shall:
620 (i) consider all available diagnosis, treatment, and supervision recommendations;
621 (ii) if a party does not agree with treatment recommendations issued by the department
622 under Subsection (5)(a)(i)(A), hold a hearing on the issue of the department's recommendations
623 and make appropriate modifications to the recommendations if necessary; and
624 (iii) order the defendant to comply with all treatment and supervision recommendations
625 that the court finds are in the best interest of the defendant and public safety.
626 (c) (i) In determining treatment and supervision recommendations under Subsection
627 (5)(b), the court may order the defendant to be placed in a secure setting as described in
628 Subsections (5)(c)(ii) and (iii) if the court finds that the placement would be in the best interest
629 of the defendant, a victim of the defendant, or public safety.
630 (ii) (A) If the offense is a class C misdemeanor, the court may not place the defendant
631 in a secure setting for more than 90 days.
632 (B) If the offense is a class B misdemeanor, the court may not place the defendant in a
633 secure setting for more than six months.
634 (C) If the offense is a class A misdemeanor or a felony, the court may place the
635 defendant in a secure setting for up to one year.
636 (iii) The court shall, before making a determination as to a secure setting placement,
637 notify the executive director of the proposed placement and provide the department with an
638 opportunity to:
639 (A) evaluate the defendant; and
640 (B) make a recommendation regarding placement to the court.
641 (d) If the court determines that the defendant is eligible for supervised release as part of
642 the defendant's treatment and supervision recommendations under Subsection (5)(b), except as
643 provided in Section 76-3-406, the court may order:
644 (i) if the offense is a felony:
645 (A) supervision by Adult Probation and Parole for a period of up to one year in
646 accordance with the applicable supervision provisions described in Title 64, Chapter 13,
647 Department of Corrections - State Prison; or
648 (B) supervision including mental health supervision by a public or private entity that
649 provides mental or behavioral health services and is approved by the department or the court;
650 or
651 (ii) if the offense is a misdemeanor, supervision including mental health supervision
652 by:
653 (A) a local mental health authority; or
654 (B) a public or private entity that provides mental or behavioral health services and is
655 approved by the department or the court.
656 (e) (i) After the initial review hearing described in Subsection (5)(a), the court shall
657 hold periodic review hearings approximately every 90 days, the frequency of which may be
658 modified by the court.
659 (ii) At a review hearing described in Subsection (5)(e)(i):
660 (A) the department or the department's designee shall report on the progress of the
661 defendant, provide recommendations for the defendant's future care, treatment, and secure or
662 unsecure placement, and advise the court on the medical necessity of treatments for the
663 defendant;
664 (B) the court shall review the status of the defendant and determine whether any
665 changes are needed to the defendant's supervision or treatment plan; and
666 (C) a party may request, if the party has a good faith basis, that the court review or
667 change the defendant's placement within a secure or non-secure setting.
668 (f) If a defendant is willfully non-compliant with the treatment or supervision ordered
669 by the court under this Subsection (5), the court shall hold an order to show cause hearing to
670 determine whether the court should:
671 (i) proceed with sentencing under Subsection (6);
672 (ii) change the defendant's placement to a secure setting;
673 (iii) impose another sanction; or
674 (iv) take no action.
675 (6) (a) The court shall defer sentencing for a defendant who has pleaded guilty with a
676 mental condition as described in Subsection (5) until:
677 (i) the court determines, after an order to show cause hearing or a review hearing as
678 described in Subsection (5), that:
679 (A) the defendant is willfully non-compliant with treatment or supervision and is
680 unlikely to become compliant with further ordered treatment or supervision; or
681 (B) the defendant has reached the maximum benefit of treatment and supervision; or
682 (ii) one year has elapsed after the day on which the court entered the defendant's plea of
683 guilty with a mental condition.
684 (b) At the sentencing hearing, the court shall:
685 (i) consider all treatment and supervision that has occurred before the sentencing
686 hearing in the defendant's case;
687 (ii) credit any time the defendant has spent in a mental health facility or other
688 residential treatment facility or a secure facility against the defendant's sentence;
689 (iii) consider victim input;
690 (iv) consider the best interests of the defendant, including which sentence will help
691 prevent the defendant:
692 (A) from losing the defendant's ability to control the defendant's state of mental health;
693 and
694 (B) from committing additional criminal conduct related to the defendant's mental
695 condition;
696 (v) consider the best interest of public safety; and
697 (vi) consider any other relevant factor or circumstance.
698 (7) Except as provided in Subsection (7)(c), after a defendant who has been sentenced
699 under Subsection (6) has completed the defendant's sentence and any probation or parole:
700 (a) notwithstanding the contrary provisions in Subsection 76-3-402(4) or 76-3-406(1),
701 the court has jurisdiction to enter a judgment of conviction and shall reduce the judgment of
702 conviction for the offense by two degrees from the original offense; and
703 (b) notwithstanding the contrary provisions in Subsection 76-3-402(4) or 76-3-406(1),
704 if the prosecuting attorney specifically agrees in writing or on the court record at any time, the
705 court has jurisdiction to consider and enter a judgment of conviction and may enter a judgment
706 of conviction for the offense that is reduced by up to three degrees from the original offense.
707 (c) If a defendant's probation is revoked and any suspended sentence is imposed, the
708 defendant may not receive a reduction under this Subsection (7).
709 (8) (a) (i) Except as provided in Subsection (8)(a)(iv), when the offense is a state
710 offense, expenses of examination, observation, and treatment for the defendant shall be paid by
711 the department when not paid for by the defendant's insurance.
712 (ii) Travel expenses shall be paid by the county where prosecution is commenced.
713 (iii) Expenses of examination for a defendant charged with a violation of a municipal
714 or county ordinance shall be paid by the municipality or county that commenced the
715 prosecution.
716 (iv) The department is not responsible for payment for an evaluation described in
717 Subsection (3)(b) that is conducted by a forensic evaluator who is privately retained by a party.
718 (b) (i) Provisions in this part for the support at public expense of a defendant with a
719 mental condition do not release an insurer of a defendant with a mental condition from liability
720 for the care or treatment of the defendant with a mental condition.
721 (ii) The department is authorized to collect amounts spent on a defendant with a mental
722 condition from an insurer of the defendant with a mental condition.
723 (iii) A health insurance company may not deny coverage for court-ordered treatment or
724 supervision of a defendant with a mental condition Ŝ→ [
724a treatment or supervision is ordered by a court if the treatment or supervision is medically
724b necessary and ←Ŝ would otherwise be a covered benefit
725 under the defendant's insurance plan Ŝ→ [
726 ordered by a court
727 Section 16. Section 77-16a-104 is amended to read:
728 77-16a-104. Verdict of guilty with a mental condition -- Hearing to determine
729 present mental state.
730 (1) Upon a verdict of guilty with a mental [
731 any lesser offense, the court shall conduct a hearing to determine the defendant's present mental
732 state.
733 (2) (a) The court may order the department to examine the defendant to determine the
734 defendant's mental condition, and may receive the evidence of any public or private expert
735 witness offered by the defendant or the prosecutor.
736 (b) The defendant may be placed in the Utah State Hospital for [
737 described in Subsection (2)(a) only upon approval of the executive director.
738 (3) If the court finds by clear and convincing evidence that the defendant currently has
739 a mental [
740 law upon a defendant who does not have a mental [
741 the same offense, and:
742 (a) commit the defendant to the department, in accordance with the provisions of
743 Section 77-16a-202, if:
744 (i) the court gives the department the opportunity to provide an evaluation and
745 recommendation under Subsection (4); and
746 (ii) the court finds by clear and convincing evidence that:
747 (A) because of the defendant's mental [
748 immediate physical danger to self or others, including jeopardizing the defendant's own or
749 others' safety, health, or welfare if placed in a correctional or probation setting, or lacks the
750 ability to provide the basic necessities of life, such as food, clothing, and shelter, if placed on
751 probation; and
752 (B) the department is able to provide the defendant with treatment, care, custody, and
753 security that is adequate and appropriate to the defendant's conditions and needs;
754 (b) order probation in accordance with Section 77-16a-201; or
755 (c) if the court determines that commitment to the department under Subsection (3)(a)
756 or probation under Subsection (3)(b) is not appropriate, the court shall place the defendant in
757 the custody of UDC or a county jail as allowed by law.
758 (4) In order to [
759 court shall, before making a determination, notify the executive director of the proposed
760 placement and provide the department with an opportunity to evaluate the defendant and make
761 a recommendation to the court regarding placement prior to commitment.
762 (5) If the court finds that the defendant does not currently have a mental [
763 condition, the court shall sentence the defendant as it would any other defendant.
764 (6) Expenses for examinations ordered under this section shall be paid in accordance
765 with Subsection [
766 Section 17. Section 77-16a-201 is amended to read:
767
768 77-16a-201. Probation.
769 (1) (a) In felony cases, when the court proposes to place on probation a defendant who
770 has pled or is found guilty with a mental [
771 request UDC to provide a presentence investigation report regarding whether probation is
772 appropriate for that defendant and, if so, recommending a specific treatment program. If the
773 defendant is placed on probation, that treatment program shall be made a condition of
774 probation, and the defendant shall remain under the jurisdiction of the sentencing court.
775 (b) The court may not place an offender who has been convicted of the felony offenses
776 listed in Section 76-3-406 on probation, regardless of whether the offender has, or had, a
777 mental [
778 (2) The period of probation for a felony offense committed by a defendant who has
779 been found guilty with a mental [
780 subsequently reduced by the sentencing court without consideration of an updated report on the
781 mental health status of the defendant.
782 (3) (a) Treatment ordered by the court under this section may be provided by or under
783 contract with the department, a mental health facility, a local mental health authority, or, with
784 the approval of the sentencing court, any other public or private mental health provider.
785 (b) The entity providing treatment under this section shall file a report with the
786 defendant's probation officer at least every six months during the term of probation.
787 (c) Any request for termination of probation regarding a defendant who is receiving
788 treatment under this section shall include a current mental health report prepared by the
789 treatment provider.
790 (4) Failure to continue treatment or any other condition of probation, except by
791 agreement with the entity providing treatment and the sentencing court, is a basis for initiating
792 probation violation hearings.
793 (5) The court may not release an offender with a mental [
794 community, as a part of probation, if it finds by clear and convincing evidence that the
795 offender:
796 (a) poses an immediate physical danger to self or others, including jeopardizing the
797 offender's own or others' safety, health, or welfare if released into the community; or
798 (b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
799 shelter, if released into the community.
800 (6) An offender with a mental [
801 community under the provisions of Subsection (5) may be placed by the court, on probation, in
802 an appropriate mental health facility.
803 Section 18. Section 77-16a-202 is amended to read:
804 77-16a-202. Person found guilty with a mental condition-- Commitment to
805 department -- Admission to Utah State Hospital.
806 (1) In sentencing and committing an offender with a mental [
807 department under Subsection 77-16a-104(3)(a) or in a felony case under Subsection
808 77-16a-103(6), the court shall:
809 (a) sentence the offender to a term of imprisonment and order that [
810 committed to the department and admitted to the Utah State Hospital for care and treatment
811 until transferred to UDC in accordance with Sections 77-16a-203 and 77-16a-204, making
812 provision for readmission to the Utah State Hospital whenever the requirements and conditions
813 of Section 77-16a-204 are met; or
814 (b) [
815 committed to the department for care and treatment for no more than 18 months, or until the
816 offender's condition has been stabilized to the point that commitment to the department and
817 admission to the Utah State Hospital is no longer necessary to ensure adequate mental health
818 treatment, whichever occurs first. At the expiration of that time, the court [
819
820 retention of jurisdiction under this Subsection (1)(b) shall be specified in [
821
822
823 (2) The court may not retain jurisdiction, under Subsection (1)(b), over the sentence of
824 an offender with a mental [
825 capital cases, the court shall make the findings required by this section after the capital
826 sentencing proceeding mandated by Section 76-3-207.
827 (3) When an offender is committed to the department and admitted to the Utah State
828 Hospital under Subsection (1)(b), the department shall provide the court with reports of the
829 offender's mental health status every six months. Those reports shall be prepared in accordance
830 with the requirements of Section 77-16a-203. Additionally, the court may appoint an
831 independent examiner to assess the mental health status of the offender.
832 (4) The period of commitment to the department and admission to the Utah State
833 Hospital, and any subsequent retransfers to the Utah State Hospital made pursuant to Section
834 77-16a-204 may not exceed the maximum sentence imposed by the court. Upon expiration of
835 that sentence, the administrator of the facility where the offender is located may initiate civil
836 proceedings for involuntary commitment in accordance with Title 62A, Chapter 5, Services for
837 People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act.
838 Section 19. Section 77-16a-203 is amended to read:
839 77-16a-203. Review of offenders with a mental condition committed to
840 department -- Recommendations for transfer to Department of Corrections.
841 (1) (a) The executive director shall designate a review team of at least three qualified
842 staff members, including at least one licensed psychiatrist, to evaluate the mental condition of
843 each offender with a mental [
844 77-16a-202, at least once every six months.
845 (b) If the offender has an intellectual disability, the review team shall include at least
846 one individual who is a designated intellectual disability professional, as defined in Section
847 62A-5-101.
848 (2) At the conclusion of [
849 in Subsection (1) shall make a report to the executive director:
850 (a) regarding the offender's:
851 (i) current mental condition;
852 (ii) progress since commitment; and
853 (iii) prognosis; and
854 (b) that includes a recommendation regarding whether the offender with a mental
855 [
856 (i) transferred to UDC; or
857 (ii) remain in the custody of the department.
858 (3) (a) The executive director shall notify the UDC medical administrator and the
859 board's mental health adviser that an offender with a mental [
860 transfer to UDC if the review team finds that the offender:
861 (i) no longer has a mental [
862 (ii) has a mental [
863 but can be controlled if adequate care, medication, and treatment are provided by UDC; and
864 (iii) the offender's condition has been stabilized to the point that commitment to the
865 department and admission to the Utah State Hospital are no longer necessary to ensure
866 adequate mental health treatment.
867 (b) The administrator of the mental health facility where the offender is located shall
868 provide the UDC medical administrator with a copy of the reviewing staff's recommendation
869 and:
870 (i) all available clinical facts;
871 (ii) the diagnosis;
872 (iii) the course of treatment received at the mental health facility;
873 (iv) the prognosis for remission of symptoms;
874 (v) the potential for recidivism;
875 (vi) an estimation of the offender's dangerousness, either to self or others; and
876 (vii) recommendations for future treatment.
877 Section 20. Section 77-16a-204 is amended to read:
878 77-16a-204. UDC acceptance of transfer of persons found guilty with a mental
879 condition -- Retransfer from UDC to department for admission to the Utah State
880 Hospital.
881 (1) The UDC medical administrator shall designate a transfer team of at least three
882 qualified staff members, including at least one licensed psychiatrist, to evaluate the
883 recommendation made by the department's review team pursuant to Section 77-16a-203. If the
884 offender has an intellectual disability, the transfer team shall include at least one person who
885 has expertise in testing and diagnosis of people with intellectual disabilities.
886 (2) The transfer team shall concur in the recommendation if the transfer team
887 determines that UDC can provide the offender with a mental [
888 mental health treatment.
889 (3) The UDC transfer team and medical administrator shall recommend the facility in
890 which the offender should be placed and the treatment to be provided in order for the offender's
891 mental condition to remain stabilized to the director of the Division of Institutional Operations,
892 within the Department of Corrections.
893 (4) In the event that the department and UDC do not agree on the transfer of an
894 offender with a mental [
895 the offender is located shall notify the mental health adviser for the board, in writing, of the
896 dispute. The mental health adviser shall be provided with copies of all reports and
897 recommendations. The board's mental health adviser shall make a recommendation to the
898 board on the transfer and the board shall issue its decision within 30 days.
899 (5) UDC shall notify the board whenever an offender with a mental [
900 is transferred from the department to UDC.
901 (6) When an offender with a mental [
902 77-16a-202, who has been transferred from the department to UDC, and accepted by UDC, is
903 evaluated and it is determined that the offender's mental condition has deteriorated or that the
904 offender has become mentally unstable, the offender may be readmitted to the Utah State
905 Hospital in accordance with the findings and procedures described in Section 62A-15-605.5.
906 (7) Any [
907 Subsection (6) shall remain in the custody of UDC, and the state hospital shall act solely as the
908 agent of UDC.
909 (8) An offender with a mental [
910 State Hospital pursuant to Subsection (6) shall be transferred back to UDC in accordance with
911 the provisions of Section 77-16a-203.
912 Section 21. Section 77-16a-205 is amended to read:
913 77-16a-205. Parole.
914 (1) When an offender with a mental [
915 department becomes eligible to be considered for parole, the board shall request a
916 recommendation from the executive director and from UDC before placing the offender on
917 parole.
918 (2) Before setting a parole date, the board shall request that its mental health adviser
919 prepare a report regarding the offender with a mental [
920 (a) all available clinical facts;
921 (b) the diagnosis;
922 (c) the course of treatment received at the mental health facility;
923 (d) the prognosis for remission of symptoms;
924 (e) potential for recidivism;
925 (f) an estimation of the dangerousness of the offender with a mental [
926 either to self or others; and
927 (g) recommendations for future treatment.
928 (3) Based on the report described in Subsection (2), the board may place the offender
929 with a mental [
930 a condition of parole. If treatment is ordered, failure to continue treatment, except by
931 agreement with the treatment provider, and the board, is a basis for initiation of parole
932 violation hearings by the board.
933 (4) UDC, through Adult Probation and Parole, shall monitor the status of an offender
934 with a mental [
935 by contracting with the department, a local mental health authority, any other public or private
936 provider, or in-house staff.
937 (5) The board may not subsequently reduce the period of parole without considering an
938 updated report on the offender's current mental condition.
939 Section 22. Section 77-16a-301 is amended to read:
940 77-16a-301. Mental examination of defendant.
941 (1) (a) When the court receives notice that a defendant intends to claim that the
942 defendant is not guilty by reason of insanity or that the defendant had diminished mental
943 capacity, or that the defendant intends to assert special mitigation under Subsection
944 76-5-205.5(2)(a), the court shall order the department to examine the defendant and investigate
945 the defendant's mental condition.
946 (b) The person or organization directed by the department to conduct the examination
947 shall testify at the request of the court or either party in a proceeding in which the testimony is
948 otherwise admissible.
949 (c) Pending trial, unless the court or the executive director directs otherwise, the
950 defendant shall be retained in the same custody or status the defendant was in at the time the
951 examination was ordered.
952 (2) (a) The defendant shall be available and shall fully cooperate in the examination by
953 the department and other independent examiners for the defense and the prosecuting attorney.
954 (b) If the defendant fails to be available and to fully cooperate, and that failure is
955 established to the satisfaction of the court at a hearing prior to trial, the defendant is barred
956 from presenting expert testimony relating to the defendant's defense of a mental [
957 condition at the trial of the case.
958 (c) The department shall complete the examination within 30 days after the court's
959 order, and shall prepare and provide to the court prosecutor and defense counsel a written
960 report concerning the condition of the defendant.
961 (3) Within 10 days after receipt of the report described in Subsection (2)(c) from the
962 department, but not later than five days before the trial of the case, or at any other time the
963 court directs, the prosecuting attorney shall file and serve upon the defendant a notice of
964 rebuttal of the defense of a mental [
965 witnesses the prosecuting attorney proposes to call in rebuttal.
966 (4) The report of another independent examiner is admissible as evidence upon
967 stipulation of the prosecution and defense.
968 (5) (a) This section does not prevent a party from producing other testimony as to the
969 mental condition of the defendant.
970 (b) An expert witness who is not appointed by the court is not entitled to compensation
971 under Subsection (7).
972 (6) This section does not require the admission of evidence not otherwise admissible.
973 (7) (a) The department shall pay the expenses of an examination ordered by the court
974 under this section.
975 (b) The department shall charge the county where the prosecution is commenced for
976 travel expenses associated with an examination incurred by a defendant.
977 (c) The department shall charge the entity commencing the prosecution for an
978 examination of a defendant charged with a violation of a municipal or county ordinance.
979 Section 23. Section 77-16a-302 is amended to read:
980 77-16a-302. Persons found not guilty by reason of insanity -- Disposition.
981 (1) Upon a verdict of not guilty by reason of insanity, the court shall conduct a hearing
982 within 10 days to determine whether the defendant currently has a mental [
983 The defense counsel and prosecutors may request further evaluations and present testimony
984 from those examiners.
985 (2) After the hearing and upon consideration of the record, the court shall order the
986 defendant committed to the department if it finds by clear and convincing evidence that:
987 (a) the defendant has a mental [
988 (b) because of that mental [
989 danger to self or others.
990 (3) The period of commitment described in Subsection (2) may not exceed the period
991 for which the defendant could be incarcerated had the defendant been convicted and received
992 the maximum sentence for the crime of which the defendant was accused. At the time that
993 period expires, involuntary civil commitment proceedings may be instituted in accordance with
994 Title 62A, Chapter 15, Substance Abuse and Mental Health Act.
995 Section 24. Section 77-16a-304 is amended to read:
996 77-16a-304. Review after commitment.
997 (1) (a) The executive director, or the executive director's designee, shall establish a
998 review team of at least three qualified staff members to review the defendant's mental condition
999 at least every six months.
1000 (b) The team described in Subsection (1)(a) shall include:
1001 (i) at least one psychiatrist; and
1002 (ii) if the defendant has an intellectual disability, at least one staff member who is a
1003 designated intellectual disability professional.
1004 (2) If the review team described in Subsection (1) finds that the defendant has
1005 recovered from the defendant's mental [
1006 mental [
1007 executive director, or the executive director's designee, shall:
1008 (a) notify the court that committed the defendant that the defendant is a candidate for
1009 discharge; and
1010 (b) provide the court with a report stating the facts that form the basis for the
1011 recommendation.
1012 (3) (a) The court shall conduct a hearing within 10 business days after receipt of the
1013 executive director's, or the executive director's designee's, notification.
1014 (b) The court clerk shall provide notice of the date and time of the hearing to:
1015 (i) the prosecuting attorney;
1016 (ii) the defendant's attorney; and
1017 (iii) any victim of the crime for which the defendant was found not guilty by reason of
1018 insanity.
1019 (4) (a) The court shall order that the defendant be discharged from commitment if the
1020 court finds that the defendant:
1021 (i) no longer has a mental [
1022 (ii) has a mental [
1023 or others.
1024 (b) The court shall order the person conditionally released in accordance with Section
1025 77-16a-305 if the court finds that the defendant:
1026 (i) has a mental [
1027 (ii) is a substantial danger to self or others; and
1028 (iii) can be controlled adequately if conditionally released with treatment as a condition
1029 of release.
1030 (c) The court shall order that the commitment be continued if the court finds that the
1031 defendant:
1032 (i) has not recovered from the defendant's mental [
1033 (ii) is a substantial danger to self or others; and
1034 (iii) cannot adequately be controlled if conditionally released on supervision.
1035 (d) (i) Except as provided in Subsection (4)(d)(ii), the court may not discharge a
1036 defendant whose mental [
1037 hospitalization if it can be determined within reasonable medical probability that without
1038 continued medication or hospitalization the defendant's mental [
1039 making the defendant a substantial danger to self or others.
1040 (ii) Notwithstanding Subsection (4)(d)(i), the defendant described in Subsection
1041 (4)(d)(i) may be a candidate for conditional release, in accordance with Section 77-16a-305.
1042 Section 25. Section 77-16a-305 is amended to read:
1043 77-16a-305. Conditional release.
1044 (1) If the review team finds that a defendant is not eligible for discharge, in accordance
1045 with Section 77-16a-304, but that [
1046 dangerousness can be controlled with proper care, medication, supervision, and treatment if
1047 [
1048 the executive director, or [
1049 candidate for conditional release.
1050 (2) The executive director, or [
1051 conditional release plan, listing the type of care and treatment that the individual needs and
1052 recommending a treatment provider.
1053 (3) The executive director, or [
1054 court, the defendant's attorney, and the prosecuting attorney with a copy of the report issued by
1055 the review team under Subsection (1), and the conditional release plan. The court shall
1056 conduct a hearing on the issue of conditional release within 30 days after receipt of those
1057 documents.
1058 (4) The court may order that a defendant be conditionally released if it finds that, even
1059 though the defendant presents a substantial danger to [
1060 defendant can be adequately controlled with supervision and treatment that is available and
1061 provided for in the conditional release plan.
1062 (5) The department may provide treatment or contract with a local mental health
1063 authority or other public or private provider to provide treatment for a defendant who is
1064 conditionally released under this section.
1065 Section 26. Section 77-16a-306 is amended to read:
1066 77-16a-306. Continuing review -- Discharge.
1067 (1) Each entity that provides treatment for a defendant committed to the department as
1068 not guilty by reason of insanity under this part shall review the status of each defendant at least
1069 once every six months. If the treatment provider finds that a defendant has recovered from the
1070 defendant's mental [
1071 longer presents a substantial danger to self or others, [
1072 executive director of [
1073 (2) Upon receipt of notification under Subsection (1), the executive director shall
1074 designate a review team, in accordance with Section 77-16a-304, to evaluate the defendant. If
1075 that review team concurs with the treatment provider's assessment, the executive director shall
1076 notify the court, the defendant's attorney, and the prosecuting attorney that the defendant is a
1077 candidate for discharge. The court shall conduct a hearing, in accordance with Section
1078 77-16a-302, within 10 business days after receipt of that notice.
1079 (3) The court may not discharge an individual whose mental [
1080 remission as a result of medication or hospitalization if it can be determined within reasonable
1081 medical probability that without continued medication or hospitalization the defendant's mental
1082 [
1083 Section 27. Section 77-27-2 is amended to read:
1084 77-27-2. Board of Pardons and Parole -- Creation -- Compensation -- Functions.
1085 (1) (a) There is created the Board of Pardons and Parole.
1086 (b) The board shall consist of five full-time members and not more than five pro
1087 tempore members to be appointed by the governor with the advice and consent of the Senate in
1088 accordance with Title 63G, Chapter 24, Part 2, Vacancies, and as provided in this section.
1089 (c) The members of the board shall be resident citizens of the state.
1090 (d) The governor shall establish salaries for the members of the board within the salary
1091 range fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
1092 (2) (a) (i) (A) The full-time board members shall serve terms of five years.
1093 (B) The terms of the full-time members shall be staggered so one board member is
1094 appointed for a term of five years on March 1 of each year.
1095 (ii) (A) The pro tempore members shall serve terms of five years, beginning on March
1096 1 of the year of appointment, with no more than one pro tempore member term beginning or
1097 expiring in the same calendar year.
1098 (B) If a pro tempore member vacancy occurs, the board may submit the names of not
1099 fewer than three or more than five persons to the governor for appointment to fill the vacancy.
1100 (b) All vacancies occurring on the board for any cause shall be filled by the governor
1101 with the advice and consent of the Senate in accordance with this section for the unexpired
1102 term of the vacating member.
1103 (c) The governor may at any time remove any member of the board for inefficiency,
1104 neglect of duty, malfeasance or malfeasance in office, or for cause upon a hearing.
1105 (d) (i) A member of the board may not hold any other office in the government of the
1106 United States, this state or any other state, or of any county government or municipal
1107 corporation within a state.
1108 (ii) A member may not engage in any occupation or business inconsistent with the
1109 member's duties.
1110 (e) (i) A majority of the board constitutes a quorum for the transaction of business,
1111 including the holding of hearings at any time or any location within or without the state, or for
1112 the purpose of exercising any duty or authority of the board.
1113 (ii) An action is deemed the action of the board if the action is taken by a majority of
1114 the board regarding whether:
1115 (A) parole, pardon, commutation, or termination of a sentence is granted in an
1116 offender's case;
1117 (B) remission of a criminal accounts receivable, or a fines or forfeiture, is granted in an
1118 offender's case; or
1119 (C) an offender's payment schedule for a criminal accounts receivable is modified.
1120 (iii) A majority vote of the five full-time members of the board is required for adoption
1121 of rules or policies of general applicability as provided by statute.
1122 (iv) Notwithstanding Subsection (2)(e)(iii), a vacancy on the board does not impair the
1123 right of the remaining board members to exercise any duty or authority of the board as long as a
1124 majority of the board remains.
1125 (v) A board member shall comply with the conflict of interest provisions described in
1126 Title 63G, Chapter 24, Part 3, Conflicts of Interest.
1127 (f) (i) Any investigation, inquiry, or hearing that the board has authority to undertake or
1128 hold may be conducted by any board member or an examiner appointed by the board.
1129 (ii) When an action under Subsection (2)(f)(i) is approved and confirmed by the board
1130 and filed in the board's office, the action is considered to be the action of the board and has the
1131 same effect as if originally made by the board.
1132 (g) (i) When a full-time board member is absent or in other extraordinary
1133 circumstances, the chair may, as dictated by public interest and efficient administration of the
1134 board, assign a pro tempore member to act in the place of a full-time member.
1135 (ii) Pro tempore members shall receive a per diem rate of compensation as established
1136 by the Division of Finance and all actual and necessary expenses incurred in attending to
1137 official business.
1138 (h) The chair may request staff and administrative support as necessary from the
1139 department.
1140 (3) (a) Except as provided in Subsection (3)(b), the commission shall:
1141 (i) recommend five applicants to the governor for a full-time member appointment to
1142 the board; and
1143 (ii) consider applicants' knowledge of the criminal justice system, state and federal
1144 criminal law, judicial procedure, corrections policies and procedures, and behavioral sciences.
1145 (b) The procedures and requirements of Subsection (3)(a) do not apply if the governor
1146 appoints a sitting board member to a new term of office.
1147 (4) (a) (i) The board shall appoint an individual to serve as the board's mental health
1148 adviser and may appoint other staff necessary to aid the board in fulfilling the board's
1149 responsibilities under [
1150
1151 Condition.
1152 (ii) The adviser shall prepare reports and recommendations to the board on all persons
1153 adjudicated as guilty with a mental [
1154
1155 Commitment and Treatment of Individuals with a Mental Condition.
1156 (b) The mental health adviser shall possess the qualifications necessary to carry out the
1157 duties imposed by the board and may not be employed by the department or the Utah State
1158 Hospital.
1159 (i) The board may review outside employment by the mental health advisor.
1160 (ii) The board shall develop rules governing employment with entities other than the
1161 board by the mental health advisor for the purpose of prohibiting a conflict of interest.
1162 (c) The mental health adviser shall:
1163 (i) act as liaison for the board with the Department of Health and Human Services and
1164 local mental health authorities;
1165 (ii) educate the members of the board regarding the needs and special circumstances of
1166 persons with a mental [
1167 (iii) in cooperation with the department, monitor the status of persons in the prison
1168 who have been found guilty with a mental [
1169 (iv) monitor the progress of other persons under the board's jurisdiction who have a
1170 mental [
1171 (v) conduct hearings as necessary in the preparation of reports and recommendations;
1172 and
1173 (vi) perform other duties as assigned by the board.
1174 Section 28. Section 77-27-5.3 is amended to read:
1175 77-27-5.3. Meritless and bad faith litigation.
1176 (1) For purposes of this section:
1177 (a) "Convicted" means a conviction by entry of a plea of guilty or nolo contendere,
1178 guilty with a mental [
1179 (b) "Prisoner" means a person who has been convicted of a crime and is incarcerated
1180 for that crime or is being held in custody for trial or sentencing.
1181 (2) In any case filed in state or federal court in which a prisoner submits a claim that
1182 the court finds to be without merit and brought or asserted in bad faith, the Board of Pardons
1183 and Parole and any county jail administrator may consider that finding in any early release
1184 decisions concerning the prisoner.
1185 Section 29. Section 77-27-10.5 is amended to read:
1186 77-27-10.5. Special condition of parole -- Penalty.
1187 (1) In accordance with Section 77-27-5, the Board of Pardons and Parole may release
1188 the defendant on parole and as a condition of parole, the board may order the defendant to be
1189 prohibited from directly or indirectly engaging in any profit or benefit generating activity
1190 relating to the publication of facts or circumstances pertaining to the defendant's involvement
1191 in the criminal act for which the defendant is convicted.
1192 (2) The order may prohibit the defendant from contracting with any person, firm,
1193 corporation, partnership, association, or other legal entity with respect to the commission and
1194 reenactment of the defendant's criminal conduct, by way of a movie, book, magazine article,
1195 tape recording, phonograph record, radio, or television presentations, live entertainment of any
1196 kind, or from the expression of the defendant's thoughts, feelings, opinions, or emotions
1197 regarding the criminal conduct.
1198 (3) The board may order that the prohibition includes any event undertaken and
1199 experienced by the defendant while avoiding apprehension from the authorities or while facing
1200 criminal charges.
1201 (4) The board may order that any action taken by the defendant by way of execution of
1202 power of attorney, creation of corporate entities, or other action to avoid compliance with the
1203 board's order shall be grounds for revocation of parole as provided in Section 77-27-11.
1204 (5) Adult Probation and Parole shall notify the board of any alleged violation of the
1205 board's order under this section.
1206 (6) The violation of the board's order shall be considered a violation of parole.
1207 (7) For purposes of this section:
1208 (a) "convicted" means a conviction by entry of a plea of guilty or nolo contendere,
1209 guilty with a mental [
1210 (b) "defendant" means the convicted defendant, the defendant's assignees, and
1211 representatives acting on the defendant's authority.
1212 Section 30. Section 77-36-1.1 is amended to read:
1213 77-36-1.1. Enhancement of offense and penalty for subsequent domestic violence
1214 offenses.
1215 (1) As used in this section:
1216 (a) (i) "Convicted" means a conviction by plea or verdict of a crime or offense.
1217 (ii) "Convicted" includes:
1218 (A) a plea of guilty or guilty [
1219 (B) a plea of no contest; and
1220 (C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
1221 in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
1222 accordance with the plea in abeyance agreement.
1223 (iii) "Convicted" does not include an adjudication in juvenile court.
1224 (b) "Criminal mischief offense" means commission or attempt to commit an offense
1225 under Section 76-6-106 by one cohabitant against another.
1226 (c) "Offense against the person" means commission or attempt to commit an offense
1227 under Title 76, Chapter 5, Part 1, Assault and Related Offenses, Part 2, Criminal Homicide,
1228 Part 3, Kidnapping, Trafficking, and Smuggling, Part 4, Sexual Offenses, or Part 7, Genital
1229 Mutilation, by one cohabitant against another.
1230 (d) "Qualifying domestic violence offense" means:
1231 (i) a domestic violence offense in Utah; or
1232 (ii) an offense in any other state, or in any district, possession, or territory of the United
1233 States, that would be a domestic violence offense under Utah law.
1234 (2) An individual who is convicted of a domestic violence offense is guilty of a class B
1235 misdemeanor if:
1236 (a) the domestic violence offense described in this Subsection (2) is designated by law
1237 as a class C misdemeanor; and
1238 (b) the individual commits or is convicted of the domestic violence offense described
1239 in this Subsection (2):
1240 (i) within 10 years after the day on which the individual is convicted of a qualifying
1241 domestic violence offense that is not a criminal mischief offense; or
1242 (ii) within five years after the day on which the individual is convicted of a criminal
1243 mischief offense.
1244 (3) An individual who is convicted of a domestic violence offense is guilty of a class A
1245 misdemeanor if:
1246 (a) the domestic violence offense described in this Subsection (3) is designated by law
1247 as a class B misdemeanor; and
1248 (b) the individual commits or is convicted of the domestic violence offense described
1249 in this Subsection (3):
1250 (i) within 10 years after the day on which the individual is convicted of a qualifying
1251 domestic violence offense that is not a criminal mischief offense; or
1252 (ii) within five years after the day on which the individual is convicted of a criminal
1253 mischief offense.
1254 (4) An individual who is convicted of a domestic violence offense is guilty of a third
1255 degree felony if:
1256 (a) the domestic violence offense described in this Subsection (4) is designated by law
1257 as a class B misdemeanor offense against the person and the individual:
1258 (i) (A) commits or is convicted of the domestic violence offense described in this
1259 Subsection (4) within 10 years after the day on which the individual is convicted of a
1260 qualifying domestic violence offense that is not a criminal mischief offense; and
1261 (B) is convicted of another qualifying domestic violence offense that is not a criminal
1262 mischief offense after the day on which the individual is convicted of the qualifying domestic
1263 violence offense described in Subsection (4)(a)(i)(A) and before the day on which the
1264 individual is convicted of the domestic violence offense described in this Subsection (4);
1265 (ii) (A) commits or is convicted of the domestic violence offense described in this
1266 Subsection (4) within five years after the day on which the individual is convicted of a criminal
1267 mischief offense; and
1268 (B) is convicted of another criminal mischief offense after the day on which the
1269 individual is convicted of the criminal mischief offense described in Subsection (4)(a)(ii)(A)
1270 and before the day on which the individual is convicted of the domestic violence offense
1271 described in this Subsection (4); or
1272 (iii) commits or is convicted of the domestic violence offense described in this
1273 Subsection (4) within 10 years after the day on which the individual is convicted of a
1274 qualifying domestic violence offense that is not a criminal mischief offense and within five
1275 years after the day on which the individual is convicted of a criminal mischief offense; and
1276 (b) (i) the domestic violence offense described in this Subsection (4) is designated by
1277 law as a class A misdemeanor; and
1278 (ii) the individual commits or is convicted of the domestic violence offense described
1279 in this Subsection (4):
1280 (A) within 10 years after the day on which the individual is convicted of a qualifying
1281 domestic violence offense that is not a criminal mischief offense; or
1282 (B) within five years after the day on which the individual is convicted of a criminal
1283 mischief offense.
1284 Section 31. Section 77-38-302 is amended to read:
1285 77-38-302. Definitions.
1286 As used in this part:
1287 (1) "Convicted person" means a person who has been convicted of a crime.
1288 (2) "Conviction" means an adjudication by a federal or state court resulting from a trial
1289 or plea, including a plea of no contest, nolo contendere, a finding of not guilty due to insanity,
1290 or not guilty but having a mental [
1291 imposed or suspended.
1292 (3) "Fund" means the Crime Victim Reparations Fund created in Section 63M-7-526.
1293 (4) "Memorabilia" means any tangible property of a convicted person or a
1294 representative or assignee of a convicted person, the value of which is enhanced by the
1295 notoriety gained from the criminal activity for which the person was convicted.
1296 (5) "Notoriety of crimes contract" means a contract or other agreement with a
1297 convicted person, or a representative or assignee of a convicted person, with respect to:
1298 (a) the reenactment of a crime in any manner including a movie, book, magazine
1299 article, Internet website, recording, phonograph record, radio or television presentation, or live
1300 entertainment of any kind;
1301 (b) the expression of the convicted person's thoughts, feelings, opinions, or emotions
1302 regarding a crime involving or causing personal injury, death, or property loss as a direct result
1303 of the crime; or
1304 (c) the payment or exchange of any money or other consideration or the proceeds or
1305 profits that directly or indirectly result from the notoriety of the crime.
1306 (6) "Office" means the Utah Office for Victims of Crime.
1307 (7) "Profit" means any income or benefit:
1308 (a) over and above the fair market value of tangible property that is received upon the
1309 sale or transfer of memorabilia; or
1310 (b) any money, negotiable instruments, securities, or other consideration received or
1311 contracted for gain which is traceable to a notoriety of crimes contract.
1312 Section 32. Section 77-38b-102 is amended to read:
1313 77-38b-102. Definitions.
1314 As used in this chapter:
1315 (1) "Civil accounts receivable" means the same as that term is defined in Section
1316 77-32b-102.
1317 (2) "Civil judgment of restitution" means the same as that term is defined in Section
1318 77-32b-102.
1319 (3) (a) "Conviction" means:
1320 (i) a plea of:
1321 (A) guilty;
1322 (B) guilty with a mental [
1323 (C) no contest; or
1324 (ii) a judgment of:
1325 (A) guilty; or
1326 (B) guilty with a mental [
1327 (b) "Conviction" does not include:
1328 (i) a plea in abeyance until a conviction is entered for the plea in abeyance;
1329 (ii) a diversion agreement; or
1330 (iii) an adjudication of a minor for an offense under Section 80-6-701.
1331 (4) "Criminal accounts receivable" means the same as that term is defined in Section
1332 77-32b-102.
1333 (5) "Criminal conduct" means:
1334 (a) any misdemeanor or felony offense of which the defendant is convicted; or
1335 (b) any other criminal behavior for which the defendant admits responsibility to the
1336 sentencing court with or without an admission of committing the criminal behavior.
1337 (6) (a) "Defendant" means an individual who has been convicted of, or entered into a
1338 plea disposition for, criminal conduct.
1339 (b) "Defendant" does not include a minor, as defined in Section 80-1-102, who is
1340 adjudicated, or enters into a nonjudicial adjustment, for any offense under Title 80, Chapter 6,
1341 Juvenile Justice.
1342 (7) "Department" means the Department of Corrections.
1343 (8) "Diversion agreement" means an agreement entered into by the prosecuting
1344 attorney and the defendant that suspends criminal proceedings before conviction on the
1345 condition that a defendant agree to participate in a rehabilitation program, pay restitution to the
1346 victim, or fulfill some other condition.
1347 (9) "Office" means the Office of State Debt Collection created in Section 63A-3-502.
1348 (10) "Party" means the prosecuting attorney, the defendant, or the department involved
1349 in a prosecution.
1350 (11) "Payment schedule" means the same as that term is defined in Section
1351 77-32b-102.
1352 (12) (a) "Pecuniary damages" means all demonstrable economic injury, losses, and
1353 expenses regardless of whether the economic injury, losses, and expenses have yet been
1354 incurred.
1355 (b) "Pecuniary damages" does not include punitive damages or pain and suffering
1356 damages.
1357 (13) "Plea agreement" means an agreement entered between the prosecuting attorney
1358 and the defendant setting forth the special terms and conditions and criminal charges upon
1359 which the defendant will enter a plea of guilty or no contest.
1360 (14) "Plea disposition" means an agreement entered into between the prosecuting
1361 attorney and the defendant including a diversion agreement, a plea agreement, a plea in
1362 abeyance agreement, or any agreement by which the defendant may enter a plea in any other
1363 jurisdiction or where charges are dismissed without a plea.
1364 (15) "Plea in abeyance" means an order by a court, upon motion of the prosecuting
1365 attorney and the defendant, accepting a plea of guilty or of no contest from the defendant but
1366 not, at that time, entering judgment of conviction against the defendant nor imposing sentence
1367 upon the defendant on condition that the defendant comply with specific conditions as set forth
1368 in a plea in abeyance agreement.
1369 (16) "Plea in abeyance agreement" means an agreement entered into between the
1370 prosecuting attorney and the defendant setting forth the specific terms and conditions upon
1371 which, following acceptance of the agreement by the court, a plea may be held in abeyance.
1372 (17) "Restitution" means the payment of pecuniary damages to a victim.
1373 (18) (a) "Victim" means any person who has suffered pecuniary damages that are
1374 proximately caused by the criminal conduct of the defendant.
1375 (b) "Victim" includes:
1376 (i) the Utah Office for Victims of Crime if the Utah Office for Victims of Crime makes
1377 a payment to a victim under Section 63M-7-519;
1378 (ii) the estate of a deceased victim; and
1379 (iii) a parent, spouse, or sibling of a victim.
1380 (c) "Victim" does not include a codefendant or accomplice.
1381 Section 33. Section 78A-2-302 is amended to read:
1382 78A-2-302. Indigent litigants -- Affidavit.
1383 (1) As used in Sections 78A-2-302 through 78A-2-309:
1384 (a) "Convicted" means:
1385 (i) a conviction by entry of a plea of guilty or nolo contendere, guilty with a mental
1386 [
1387 (ii) a conviction of any crime or offense.
1388 (b) "Indigent" means an individual who is financially unable to pay fees and costs or
1389 give security.
1390 (c) "Prisoner" means an individual who has been convicted of a crime and is
1391 incarcerated for that crime or is being held in custody for trial or sentencing.
1392 (2) An individual may institute, prosecute, defend, or appeal any cause in a court in this
1393 state without prepayment of fees and costs or security if the individual submits an affidavit
1394 demonstrating that the individual is indigent.
1395 (3) A court shall find an individual indigent if the individual's affidavit under
1396 Subsection (2) demonstrates:
1397 (a) the individual has an income level at or below 150% of the United States poverty
1398 level as defined by the most recent poverty income guidelines published by the United States
1399 Department of Health and Human Services;
1400 (b) the individual receives benefits from a means-tested government program,
1401 including Temporary Assistance to Needy Families, Supplemental Security Income, the
1402 Supplemental Nutrition Assistance Program, or Medicaid;
1403 (c) the individual receives legal services from a nonprofit provider or a pro bono
1404 attorney through the Utah State Bar; or
1405 (d) the individual has insufficient income or other means to pay the necessary fees and
1406 costs or security without depriving the individual, or the individual's family, of food, shelter,
1407 clothing, or other necessities.
1408 (4) An affidavit demonstrating that an individual is indigent under Subsection (3)(d)
1409 shall contain complete information on the individual's:
1410 (a) identity and residence;
1411 (b) amount of income, including any government financial support, alimony, or child
1412 support;
1413 (c) assets owned, including real and personal property;
1414 (d) business interests;
1415 (e) accounts receivable;
1416 (f) securities, checking and savings account balances;
1417 (g) debts; and
1418 (h) monthly expenses.
1419 (5) If the individual under Subsection (3) is a prisoner, the prisoner shall disclose the
1420 amount of money held in the prisoner's trust account at the time the affidavit under Subsection
1421 (2) is executed in accordance with Section 78A-2-305.
1422 (6) An affidavit of indigency under this section shall state the following:
1423 I, (insert name), do solemnly swear or affirm that due to my poverty I am unable to bear
1424 the expenses of the action or legal proceedings which I am about to commence or the appeal
1425 which I am about to take, and that I believe I am entitled to the relief sought by the action, legal
1426 proceedings, or appeal.
1427 Section 34. Section 78B-7-901 is amended to read:
1428 78B-7-901. Definitions.
1429 As used in this part:
1430 (1) "Conviction" means:
1431 (a) a verdict or conviction;
1432 (b) a plea of guilty or guilty [
1433 (c) a plea of no contest; or
1434 (d) the acceptance by the court of a plea in abeyance.
1435 (2) "Immediate family" means the same as that term is defined in Section 76-5-106.5.
1436 Section 35. Section 80-2-1004 is amended to read:
1437 80-2-1004. Request for division removal of name from Licensing Information
1438 System -- Petition for evidentiary hearing or substantiation.
1439 (1) Except as provided in Subsection (2), an individual whose name is listed on the
1440 Licensing Information System as of May 6, 2002, may at any time:
1441 (a) request review by the division of the individual's case and removal of the
1442 individual's name from the Licensing Information System under Subsection (3); or
1443 (b) file a petition for substantiation and a request for a finding of unsubstantiated or
1444 without merit in accordance with Section 80-3-504.
1445 (2) Subsection (1) does not apply to an individual who has been the subject of any of
1446 the following court determinations with respect to the alleged incident of abuse or neglect:
1447 (a) conviction;
1448 (b) adjudication under Section 80-3-402 or 80-6-701;
1449 (c) plea of guilty;
1450 (d) plea of guilty with a mental [
1451 (e) no contest.
1452 (3) If an alleged perpetrator listed on the Licensing Information System before May 6,
1453 2002, requests removal of the alleged perpetrator's name from the Licensing Information
1454 System, the division shall, within 30 days after the day on which the request is made:
1455 (a) (i) review the case to determine whether the incident of alleged abuse or neglect
1456 qualifies as:
1457 (A) a severe type of child abuse or neglect;
1458 (B) chronic abuse; or
1459 (C) chronic neglect; and
1460 (ii) if the alleged abuse or neglect does not qualify as a type of abuse or neglect
1461 described in Subsections (3)(a)(i)(A) through (C), remove the alleged perpetrator's name from
1462 the Licensing Information System; or
1463 (b) determine whether to file a petition for substantiation in accordance with Section
1464 80-3-504.
1465 Section 36. Revisor instructions.
1466 The Legislature intends that the Office of Legislative Research and General Counsel, in
1467 preparing the Utah Code database for publication, replace the terms "guilty with a mental
1468 illness" and "guilty and mentally ill" with "guilty with a mental condition" in any new language
1469 added to the Utah Code by legislation passed during the 2023 General Session.