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H.B. 258
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CRIMINAL SENTENCING AMENDMENTS
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2001 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Scott Daniels
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This act modifies the Criminal Code by amending sentencing provisions regarding
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imprisonment and life imprisonment without parole and clarifying that capital offenses are
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capital felonies. This act creates a new section providing an enhanced penalty for specified
8
violent offenses committed by a prisoner and repealing the section dealing only with
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aggravated assault by a prisoner. This act amends the section that provides that a murder
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is aggravated murder if the defendant was previously convicted of a violent offense, by
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specifically listing the offenses. This act also makes cross reference corrections.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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76-3-201, as last amended by Chapter 270, Laws of Utah 1999
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76-3-203.1, as last amended by Chapter 214, Laws of Utah 2000
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76-3-206, as last amended by Chapter 142, Laws of Utah 1992
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76-3-207, as last amended by Chapter 137, Laws of Utah 1998
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76-3-207.5, as enacted by Chapter 142, Laws of Utah 1992
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76-4-201, as last amended by Chapter 32, Laws of Utah 1974
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76-5-202, as last amended by Chapter 125, Laws of Utah 2000
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76-8-306, as last amended by Chapter 203, Laws of Utah 2000
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76-8-316, as enacted by Chapter 51, Laws of Utah 1995
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77-16a-201, as enacted by Chapter 171, Laws of Utah 1992
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77-16a-202, as last amended by Chapter 256, Laws of Utah 2000
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77-18-5.5, as last amended by Chapter 190, Laws of Utah 1988
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77-20-1, as last amended by Chapter 293, Laws of Utah 1998
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77-32-201, as enacted by Chapter 354, Laws of Utah 1997
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77-32-601, as enacted by Chapter 354, Laws of Utah 1997
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77-32-604, as last amended by Chapter 333, Laws of Utah 1998
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78-46-5, as repealed and reenacted by Chapter 44, Laws of Utah 1996
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ENACTS:
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76-3-203.6, Utah Code Annotated 1953
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REPEALS:
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76-5-103.5, as last amended by Chapter 207, Laws of Utah 1997
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
76-3-201
is amended to read:
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76-3-201. Definitions -- Sentences or combination of sentences allowed -- Civil
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penalties -- Restitution -- Hearing.
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(1) As used in this section:
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(a) "Conviction" includes a:
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(i) judgment of guilt; and
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(ii) plea of guilty.
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(b) "Criminal activities" means any offense of which the defendant is convicted or any
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other criminal conduct for which the defendant admits responsibility to the sentencing court with
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or without an admission of committing the criminal conduct.
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(c) "Pecuniary damages" means all special damages, but not general damages, which a
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person could recover against the defendant in a civil action arising out of the facts or events
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constituting the defendant's criminal activities and includes the money equivalent of property
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taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical
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expenses.
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(d) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
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victim, including the accrual of interest from the time of sentencing, insured damages, and
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payment for expenses to a governmental entity for extradition or transportation and as further
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defined in Subsection (4)(c).
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(e) (i) "Victim" means any person whom the court determines has suffered pecuniary
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damages as a result of the defendant's criminal activities.
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(ii) "Victim" does not include any coparticipant in the defendant's criminal activities.
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(2) Within the limits prescribed by this chapter, a court may sentence a person convicted
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of an offense to any one of the following sentences or combination of them:
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(a) to pay a fine;
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(b) to removal or disqualification from public or private office;
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(c) to probation unless otherwise specifically provided by law;
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(d) to imprisonment;
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[(e) to life imprisonment;]
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[(f)] (e) on or after April 27, 1992, to life in prison without parole; or
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[(g)] (f) to death.
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(3) (a) This chapter does not deprive a court of authority conferred by law to:
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(i) forfeit property;
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(ii) dissolve a corporation;
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(iii) suspend or cancel a license;
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(iv) permit removal of a person from office;
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(v) cite for contempt; or
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(vi) impose any other civil penalty.
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(b) A civil penalty may be included in a sentence.
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(4) (a) (i) When a person is convicted of criminal activity that has resulted in pecuniary
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damages, in addition to any other sentence it may impose, the court shall order that the defendant
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make restitution to victims of crime as provided in this subsection, or for conduct for which the
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defendant has agreed to make restitution as part of a plea agreement. For purposes of restitution,
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a victim has the meaning as defined in Subsection (1)(e).
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(ii) In determining whether restitution is appropriate, the court shall follow the criteria and
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procedures as provided in Subsections (4)(c) and (4)(d).
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(iii) If the court finds the defendant owes restitution, the clerk of the court shall enter an
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order of complete restitution as defined in Subsection (8)(b) on the civil judgment docket and
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provide notice of the order to the parties.
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(iv) The order is considered a legal judgment enforceable under the Utah Rules of Civil
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Procedure, and the person in whose favor the restitution order is entered may seek enforcement of
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the restitution order in accordance with the Utah Rules of Civil Procedure. In addition, the
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Department of Corrections may, on behalf of the person in whose favor the restitution order is
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entered, enforce the restitution order as judgment creditor under the Utah Rules of Civil Procedure.
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(v) If the defendant fails to obey a court order for payment of restitution and the victim or
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department elects to pursue collection of the order by civil process, the victim shall be entitled to
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recover reasonable attorney's fees.
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(vi) A judgment ordering restitution constitutes a lien when recorded in a judgment docket
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and shall have the same effect and is subject to the same rules as a judgment for money in a civil
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action. Interest shall accrue on the amount ordered from the time of sentencing.
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(vii) The Department of Corrections shall make rules permitting the restitution payments
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to be credited to principal first and the remainder of payments credited to interest in accordance
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with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
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(b) (i) If a defendant has been extradited to this state under Title 77, Chapter 30,
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Extradition, to resolve pending criminal charges and is convicted of criminal activity in the county
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to which he has been returned, the court may, in addition to any other sentence it may impose,
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order that the defendant make restitution for costs expended by any governmental entity for the
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extradition.
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(ii) In determining whether restitution is appropriate, the court shall consider the criteria
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in Subsection (4)(c).
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(c) In determining restitution, the court shall determine complete restitution and
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court-ordered restitution.
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(i) Complete restitution means the restitution necessary to compensate a victim for all
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losses caused by the defendant.
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(ii) Court-ordered restitution means the restitution the court having criminal jurisdiction
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orders the defendant to pay as a part of the criminal sentence at the time of sentencing.
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(iii) Complete restitution and court-ordered restitution shall be determined as provided in
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Subsection (8).
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(d) (i) If the court determines that restitution is appropriate or inappropriate under this
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subsection, the court shall make the reasons for the decision a part of the court record.
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(ii) In any civil action brought by a victim to enforce the judgment, the defendant shall be
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entitled to offset any amounts that have been paid as part of court-ordered restitution to the victim.
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(iii) A judgment ordering restitution constitutes a lien when recorded in a judgment docket
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and shall have the same effect and is subject to the same rules as a judgment for money in a civil
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action. Interest shall accrue on the amount ordered from the time of sentencing.
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(iv) The Department of Corrections shall make rules permitting the restitution payments
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to be credited to principal first and the remainder of payments credited to interest in accordance
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with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
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(e) If the defendant objects to the imposition, amount, or distribution of the restitution, the
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court shall at the time of sentencing allow the defendant a full hearing on the issue.
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(5) (a) In addition to any other sentence the court may impose, the court shall order the
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defendant to pay restitution of governmental transportation expenses if the defendant was:
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(i) transported pursuant to court order from one county to another within the state at
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governmental expense to resolve pending criminal charges;
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(ii) charged with a felony or a class A, B, or C misdemeanor; and
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(iii) convicted of a crime.
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(b) The court may not order the defendant to pay restitution of governmental transportation
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expenses if any of the following apply:
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(i) the defendant is charged with an infraction or on a subsequent failure to appear a
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warrant is issued for an infraction; or
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(ii) the defendant was not transported pursuant to a court order.
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(c) (i) Restitution of governmental transportation expenses under Subsection (5)(a)(i) shall
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be calculated according to the following schedule:
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(A) $75 for up to 100 miles a defendant is transported;
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(B) $125 for 100 up to 200 miles a defendant is transported; and
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(C) $250 for 200 miles or more a defendant is transported.
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(ii) The schedule of restitution under Subsection (5)(c)(i) applies to each defendant
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transported regardless of the number of defendants actually transported in a single trip.
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(6) (a) If a statute under which the defendant was convicted mandates that one of three
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stated minimum terms shall be imposed, the court shall order imposition of the term of middle
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severity unless there are circumstances in aggravation or mitigation of the crime.
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(b) Prior to or at the time of sentencing, either party may submit a statement identifying
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circumstances in aggravation or mitigation or presenting additional facts. If the statement is in
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writing, it shall be filed with the court and served on the opposing party at least four days prior to
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the time set for sentencing.
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(c) In determining whether there are circumstances that justify imposition of the highest
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or lowest term, the court may consider the record in the case, the probation officer's report, other
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reports, including reports received under Section
76-3-404
, statements in aggravation or mitigation
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submitted by the prosecution or the defendant, and any further evidence introduced at the
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sentencing hearing.
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(d) The court shall set forth on the record the facts supporting and reasons for imposing
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the upper or lower term.
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(e) In determining a just sentence, the court shall consider sentencing guidelines regarding
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aggravating and mitigating circumstances promulgated by the Sentencing Commission.
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(7) If during the commission of a crime described as child [kidnaping] kidnapping, rape
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of a child, object rape of a child, sodomy upon a child, or sexual abuse of a child, the defendant
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causes substantial bodily injury to the child, and if the charge is set forth in the information or
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indictment and admitted by the defendant, or found true by a judge or jury at trial, the defendant
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shall be sentenced to the highest minimum term in state prison. This subsection takes precedence
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over any conflicting provision of law.
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(8) (a) For the purpose of determining restitution for an offense, the offense shall include
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any criminal conduct admitted by the defendant to the sentencing court or to which the defendant
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agrees to pay restitution. A victim of an offense, that involves as an element a scheme, a
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conspiracy, or a pattern of criminal activity, includes any person directly harmed by the defendant's
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criminal conduct in the course of the scheme, conspiracy, or pattern.
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(b) In determining the monetary sum and other conditions for complete restitution, the
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court shall consider all relevant facts, including:
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(i) the cost of the damage or loss if the offense resulted in damage to or loss or destruction
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of property of a victim of the offense;
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(ii) the cost of necessary medical and related professional services and devices relating to
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physical, psychiatric, and psychological care, including nonmedical care and treatment rendered
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in accordance with a method of healing recognized by the law of the place of treatment; the cost
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of necessary physical and occupational therapy and rehabilitation; and the income lost by the
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victim as a result of the offense if the offense resulted in bodily injury to a victim; and
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(iii) the cost of necessary funeral and related services if the offense resulted in the death
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of a victim.
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(c) In determining the monetary sum and other conditions for court-ordered restitution, the
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court shall consider the factors listed in Subsection (8)(b) and:
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(i) the financial resources of the defendant and the burden that payment of restitution will
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impose, with regard to the other obligations of the defendant;
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(ii) the ability of the defendant to pay restitution on an installment basis or on other
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conditions to be fixed by the court;
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(iii) the rehabilitative effect on the defendant of the payment of restitution and the method
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of payment; and
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(iv) other circumstances which the court determines make restitution inappropriate.
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(d) The court may decline to make an order or may defer entering an order of restitution
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if the court determines that the complication and prolongation of the sentencing process, as a result
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of considering an order of restitution under this subsection, substantially outweighs the need to
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provide restitution to the victim.
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Section 2.
Section
76-3-203.1
is amended to read:
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76-3-203.1. Offenses committed in concert with two or more persons -- Notice --
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Enhanced penalties.
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(1) (a) A person who commits any offense listed in Subsection (4) is subject to an
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enhanced penalty for the offense as provided in Subsection (3) if the trier of fact finds beyond a
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reasonable doubt that the person acted in concert with two or more persons.
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(b) "In concert with two or more persons" as used in this section means the defendant was
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aided or encouraged by at least two other persons in committing the offense and was aware that
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he was so aided or encouraged, and each of the other persons:
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(i) was physically present; or
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(ii) participated as a party to any offense listed in Subsection (4).
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(c) For purposes of Subsection (1)(b)(ii):
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(i) other persons participating as parties need not have the intent to engage in the same
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offense or degree of offense as the defendant; and
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(ii) a minor is a party if the minor's actions would cause him to be a party if he were an
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adult.
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(2) The prosecuting attorney, or grand jury if an indictment is returned, shall cause to be
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subscribed upon the information or indictment notice that the defendant is subject to the enhanced
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penalties provided under this section.
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(3) The enhanced penalty for a:
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(a) class B misdemeanor is a class A misdemeanor;
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(b) class A misdemeanor is a third degree felony;
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(c) third degree felony is a second degree felony;
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(d) second degree felony is a first degree felony; and
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(e) first degree felony is an [enhanced minimum] indeterminate prison term of not less than
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nine years [in prison; and] and which may be for life.
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[(f) capital offense for which a life sentence is imposed is a minimum term of 20 years in
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prison.]
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(4) Offenses referred to in Subsection (1) are:
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(a) any criminal violation of Title 58, Chapter 37, 37a, 37b, or 37c, regarding drug-related
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offenses;
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(b) assault and related offenses under Title 76, Chapter 5, Part 1;
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(c) any criminal homicide offense under Title 76, Chapter 5, Part 2;
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(d) kidnapping and related offenses under Title 76, Chapter 5, Part 3;
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(e) any felony sexual offense under Title 76, Chapter 5, Part 4;
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(f) sexual exploitation of a minor as defined in Section
76-5a-3
;
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(g) any property destruction offense under Title 76, Chapter 6, Part 1;
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(h) burglary, criminal trespass, and related offenses under Title 76, Chapter 6, Part 2;
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(i) robbery and aggravated robbery under Title 76, Chapter 6, Part 3;
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(j) theft and related offenses under Title 76, Chapter 6, Part 4;
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(k) any fraud offense under Title 76, Chapter 6, Part 5, except Sections
76-6-503
,
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76-6-504
,
76-6-505
,
76-6-507
,
76-6-508
,
76-6-509
,
76-6-510
,
76-6-511
,
76-6-512
,
76-6-513
,
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76-6-514
,
76-6-516
,
76-6-517
,
76-6-518
, and
76-6-520
;
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(l) any offense of obstructing government operations under Title 76, Chapter 8, Part 3,
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except Sections
76-8-302
,
76-8-303
,
76-8-304
,
76-8-307
,
76-8-308
, and
76-8-312
;
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(m) tampering with a witness or other violation of Section
76-8-508
;
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(n) extortion or bribery to dismiss criminal proceeding as defined in Section
76-8-509
;
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(o) any explosives offense under Title 76, Chapter 10, Part 3;
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(p) any weapons offense under Title 76, Chapter 10, Part 5;
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(q) pornographic and harmful materials and performances offenses under Title 76, Chapter
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10, Part 12;
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(r) prostitution and related offenses under Title 76, Chapter 10, Part 13;
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(s) any violation of Title 76, Chapter 10, Part 15, Bus Passenger Safety Act;
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(t) any violation of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
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(u) communications fraud as defined in Section
76-10-1801
;
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(v) any violation of Title 76, Chapter 10, Part 19, Money Laundering and Currency
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Transaction Reporting Act; and
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(w) burglary of a research facility as defined in Section
76-10-2002
.
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(5) It is not a bar to imposing the enhanced penalties under this section that the persons
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with whom the actor is alleged to have acted in concert are not identified, apprehended, charged,
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or convicted, or that any of those persons are charged with or convicted of a different or lesser
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offense.
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Section 3.
Section
76-3-203.6
is enacted to read:
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76-3-203.6. Enhanced penalty for certain offenses committed by prisoner.
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(1) As used in this section, "serving a sentence" means a prisoner is sentenced and
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committed to the custody of the Department of Corrections, the sentence has not been terminated
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or voided, and the prisoner:
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(a) has not been paroled; or
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(b) is in custody after arrest for a parole violation.
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(2) If the trier of fact finds beyond a reasonable doubt that a prisoner serving a sentence
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for a capital felony or a first degree felony commits any offense listed in Subsection (3), the court
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shall sentence the defendant to life in prison without parole. However, the court may sentence the
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defendant to an indeterminate prison term of not less than 20 years and which may be for life if
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the court finds that the interests of justice would best be served and states the specific
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circumstances justifying the disposition on the record.
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(3) Offenses referred to in Subsection (2) are:
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(a) aggravated assault, Subsection
76-5-103
(2);
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(b) mayhem, Section
76-5-105
;
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(c) attempted murder, Section
76-5-203
;
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(d) kidnapping, Section
76-5-301
;
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(e) child kidnapping, Section
76-5-301.1
;
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(f) aggravated kidnapping, Section
76-5-302
;
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(g) rape, Section
76-5-402
;
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(h) rape of a child, Section
76-5-402.1
;
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(i) object rape, Section
76-5-402.2
;
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(j) object rape of a child, Section
76-5-402.3
;
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(k) forcible sodomy, Section
76-5-403
;
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(l) sodomy on a child, Section
76-5-403.1
;
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(m) aggravated sexual abuse of a child, Section
76-5-404.1
;
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(n) aggravated sexual assault, Section
76-5-405
;
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(o) aggravated arson, Section
76-6-103
;
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(p) aggravated burglary, Section
76-6-203
; and
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(q) aggravated robbery, Section
76-6-302
.
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Section 4.
Section
76-3-206
is amended to read:
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76-3-206. Capital felony -- Penalties.
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(1) A person who has pled guilty to or been convicted of a capital felony shall be sentenced
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in accordance with Section
76-3-207
. That sentence shall be death, [life imprisonment] an
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indeterminate prison term of not less than 20 years and which may be for life, or, on or after April
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27, 1992, life in prison without parole.
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(2) (a) The judgment of conviction and sentence of death [shall be] is subject to automatic
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review by the Utah State Supreme Court within 60 days after certification by the sentencing court
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of the entire record unless time is extended an additional period not to exceed 30 days by the Utah
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State Supreme Court for good cause shown. [Such]
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(b) The review by the Utah State Supreme Court [shall have] has priority over all other
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cases and shall be heard in accordance with rules promulgated by the Utah State Supreme Court.
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Section 5.
Section
76-3-207
is amended to read:
301
76-3-207. Capital felony -- Sentencing proceeding.
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(1) (a) When a defendant has pled guilty to or been found guilty of a capital felony, there
303
shall be further proceedings before the court or jury on the issue of sentence.
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(b) In the case of a plea of guilty to a capital felony, the sentencing proceedings shall be
305
conducted before a jury or, upon request of the defendant and with the approval of the court and
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the consent of the prosecution, by the court which accepted the plea.
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(c) (i) When a defendant has been found guilty of a capital felony, the proceedings shall
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be conducted before the court or jury which found the defendant guilty, provided the defendant
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may waive hearing before the jury with the approval of the court and the consent of the
310
prosecution, in which event the hearing shall be before the court.
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(ii) If, however, circumstances make it impossible or impractical to reconvene the same
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jury for the sentencing proceedings, the court may dismiss that jury and convene a new jury for the
313
proceedings.
314
(d) If a retrial of the sentencing proceedings is necessary as a consequence of a remand
315
from an appellate court, the sentencing authority shall be determined as provided in Subsection (5).
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(2) (a) In capital sentencing proceedings, evidence may be presented on:
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(i) the nature and circumstances of the crime;
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(ii) the defendant's character, background, history, mental and physical condition;
319
(iii) the victim and the impact of the crime on the victim's family and community without
320
comparison to other persons or victims; and
321
(iv) any other facts in aggravation or mitigation of the penalty that the court considers
322
relevant to the sentence.
323
(b) Any evidence the court considers to have probative force may be received regardless
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of its admissibility under the exclusionary rules of evidence. The state's attorney and the defendant
325
shall be permitted to present argument for or against the sentence of death.
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(3) Aggravating circumstances include those outlined in Section
76-5-202
. Mitigating
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circumstances include:
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(a) the defendant has no significant history of prior criminal activity;
329
(b) the homicide was committed while the defendant was under the influence of mental
330
or emotional disturbance;
331
(c) the defendant acted under duress or under the domination of another person;
332
(d) at the time of the homicide, the capacity of the defendant to appreciate the
333
wrongfulness of his conduct or to conform his conduct to the requirement of law was impaired as
334
a result of mental disease, intoxication, or influence of drugs;
335
(e) the youth of the defendant at the time of the crime;
336
(f) the defendant was an accomplice in the homicide committed by another person and the
337
defendant's participation was relatively minor; and
338
(g) any other fact in mitigation of the penalty.
339
(4) (a) The court or jury, as the case may be, shall retire to consider the penalty. Except
340
as provided in Subsection
76-3-207.5
(2), in all proceedings before a jury, under this section, it
341
shall be instructed as to the punishment to be imposed upon a unanimous decision for death and
342
that the penalty of either [life in prison] an indeterminate prison term of not less than 20 years and
343
which may be for life or life in prison without parole, shall be imposed if a unanimous decision
344
for death is not found.
345
(b) The death penalty shall only be imposed if, after considering the totality of the
346
aggravating and mitigating circumstances, the jury is persuaded beyond a reasonable doubt that
347
total aggravation outweighs total mitigation, and is further persuaded, beyond a reasonable doubt,
348
that the imposition of the death penalty is justified and appropriate in the circumstances. If the jury
349
reports unanimous agreement to impose the sentence of death, the court shall discharge the jury
350
and shall impose the sentence of death.
351
(c) If the jury is unable to reach a unanimous decision imposing the sentence of death[,
352
except as provided in Subsection
76-3-207.5
(2)] or the state is not seeking the death penalty, the
353
jury shall then determine whether the penalty of life in prison without parole shall be imposed,
354
except as provided in Subsection
76-3-207.5
(2). The penalty of life in prison without parole shall
355
only be imposed if the jury determines that the sentence of life in prison without parole is
356
appropriate. If the jury reports agreement by ten jurors or more to impose the sentence of life in
357
prison without parole, the court shall discharge the jury and shall impose the sentence of life in
358
prison without parole. If ten jurors or more do not agree upon a sentence of life in prison without
359
parole, the court shall discharge the jury and impose [the sentence of life imprisonment with the
360
possibility of parole] an indeterminate prison term of not less than 20 years and which may be for
361
life.
362
(d) If the defendant waives hearing before the jury as to sentencing, with the approval of
363
the court and the consent of the prosecution, the court shall determine the appropriate penalty
364
according to the standards of this Subsection (4)(d).
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(5) Upon any appeal by the defendant where the sentence is of death, the appellate court,
366
if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of death
367
and remand the case to the trial court for new sentencing proceedings to the extent necessary to
368
correct the error or errors. No error in the sentencing proceedings shall result in the reversal of the
369
conviction of a capital felony. In cases of remand for new sentencing proceedings, all exhibits and
370
a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing
371
proceedings shall be admissible in the new sentencing proceedings, and if the sentencing
372
proceeding was before a:
373
(a) jury, a new jury shall be impaneled for the new sentencing proceeding unless the
374
defendant waives the hearing before the jury with the approval of the court and the consent of the
375
prosecution, in which case the proceeding shall be held according to Subsection (5)(b) or (c), as
376
applicable;
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(b) judge, the original trial judge shall conduct the new sentencing proceeding; or
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(c) judge, and the original trial judge is unable or unavailable to conduct a new sentencing
379
proceeding, then another judge shall be designated to conduct the new sentencing proceeding, and
380
the new proceeding will be before a jury unless the defendant waives the hearing before the jury
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with the approval of the court and the consent of the prosecution.
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(6) In the event the death penalty is held to be unconstitutional by the Utah Supreme Court
383
or the United States Supreme Court, the court having jurisdiction over a person previously
384
sentenced to death for a capital felony shall cause the person to be brought before the court, and
385
the court shall sentence the person to [life in prison] an indeterminate prison term of not less than
386
20 years and which may be for life, if the death penalty is held unconstitutional prior to April 27,
387
1992, or life in prison without parole if the death penalty is held unconstitutional on or after April
388
27, 1992, and any person who is thereafter convicted of a capital felony shall be sentenced to [life
389
in prison] an indeterminate prison term of not less than 20 years and which may be for life or life
390
in prison without parole.
391
Section 6.
Section
76-3-207.5
is amended to read:
392
76-3-207.5. Applicability -- Effect on sentencing -- Options of offenders.
393
(1) (a) The sentencing option of life without parole provided in Sections
76-3-201
and
394
76-3-207
applies only to those capital [offenses] felonies for which the offender is sentenced on
395
or after April 27, 1992.
396
(b) The sentencing option of life without parole provided in Sections
76-3-201
and
397
76-3-207
has no effect on sentences imposed in capital cases prior to April 27, 1992.
398
(2) An offender, who commits a capital [offense] felony prior to April 27, 1992, but is
399
sentenced on or after April 27, 1992, shall be given the option, prior to a sentencing hearing
400
pursuant to Section
76-3-207
, to proceed either under the law which was in effect at the time the
401
offense was committed or under the additional sentencing option of life in prison without parole
402
provided in Sections
76-3-201
and
76-3-207
.
403
Section 7.
Section
76-4-201
is amended to read:
404
76-4-201. Conspiracy -- Elements of offense.
405
For purposes of this part a person is guilty of conspiracy when he, intending that conduct
406
constituting a crime be performed, agrees with one or more persons to engage in or cause the
407
performance of [such] the conduct and any one of them commits an overt act in pursuance of the
408
conspiracy, except where the offense is a capital [offense] felony, a felony against the person,
409
arson, burglary, or robbery, the overt act is not required for the commission of conspiracy.
410
Section 8.
Section
76-5-202
is amended to read:
411
76-5-202. Aggravated murder.
412
(1) Criminal homicide constitutes aggravated murder if the actor intentionally or
413
knowingly causes the death of another under any of the following circumstances:
414
(a) the homicide was committed by a person who is confined in a jail or other correctional
415
institution;
416
(b) the homicide was committed incident to one act, scheme, course of conduct, or
417
criminal episode during which two or more persons were killed, or during which the actor
418
attempted to kill one or more persons in addition to the victim who was killed;
419
(c) the actor knowingly created a great risk of death to a person other than the victim and
420
the actor;
421
(d) the homicide was committed while the actor was engaged in the commission of, or an
422
attempt to commit, or flight after committing or attempting to commit, aggravated robbery,
423
robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon
424
a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child
425
abuse as defined in Subsection
76-5-109
(2)(a), or aggravated sexual assault, aggravated arson,
426
arson, aggravated burglary, burglary, aggravated [kidnaping] kidnapping, [kidnaping] kidnapping,
427
or child [kidnaping] kidnapping;
428
(e) the homicide was committed for the purpose of avoiding or preventing an arrest of the
429
defendant or another by a peace officer acting under color of legal authority or for the purpose of
430
effecting the defendant's or another's escape from lawful custody;
431
(f) the homicide was committed for pecuniary or other personal gain;
432
(g) the defendant committed, or engaged or employed another person to commit the
433
homicide pursuant to an agreement or contract for remuneration or the promise of remuneration
434
for commission of the homicide;
435
(h) the actor was previously convicted of [aggravated murder, murder, or of a felony
436
involving the use or threat of violence to a person. For the purpose of this subsection an offense
437
committed in another jurisdiction, which if committed in Utah would be punishable as aggravated
438
murder or murder, is considered aggravated murder or murder;]:
439
(i) aggravated murder, Section
76-5-202
;
440
(ii) murder, Section
76-5-203
;
441
(iii) aggravated assault, Subsection
76-5-103
(2);
442
(iv) mayhem, Section
76-5-105
;
443
(v) attempted murder, Section
76-5-203
;
444
(vi) kidnapping, Section
76-5-301
;
445
(vii) child kidnapping, Section
76-5-301.1
;
446
(viii) aggravated kidnapping, Section
76-5-302
;
447
(ix) rape, Section
76-5-402
;
448
(x) rape of a child, Section
76-5-402.1
;
449
(xi) object rape, Section
76-5-402.2
;
450
(xii) object rape of a child, Section
76-5-402.3
;
451
(xiii) forcible sodomy, Section
76-5-403
;
452
(xiv) sodomy on a child, Section
76-5-403.1
;
453
(xv) aggravated sexual abuse of a child, Section
76-5-404.1
;
454
(xvi) aggravated sexual assault, Section
76-5-405
;
455
(xvii) aggravated arson, Section
76-6-103
;
456
(xviii) aggravated burglary, Section
76-6-203
;
457
(xix) aggravated robbery, Section
76-6-302
; or
458
(xx) an offense committed in another jurisdiction which if committed in this state would
459
be a violation of a crime listed in Subsection (1)(h);
460
(i) the homicide was committed for the purpose of:
461
(i) preventing a witness from testifying;
462
(ii) preventing a person from providing evidence or participating in any legal proceedings
463
or official investigation;
464
(iii) retaliating against a person for testifying, providing evidence, or participating in any
465
legal proceedings or official investigation; or
466
(iv) disrupting or hindering any lawful governmental function or enforcement of laws;
467
(j) the victim is or has been a local, state, or federal public official, or a candidate for
468
public office, and the homicide is based on, is caused by, or is related to that official position, act,
469
capacity, or candidacy;
470
(k) the victim is or has been a peace officer, law enforcement officer, executive officer,
471
prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror, probation
472
officer, or parole officer, and the victim is either on duty or the homicide is based on, is caused by,
473
or is related to that official position, and the actor knew, or reasonably should have known, that
474
the victim holds or has held that official position;
475
(l) the homicide was committed by means of a destructive device, bomb, explosive,
476
incendiary device, or similar device which was planted, hidden, or concealed in any place, area,
477
dwelling, building, or structure, or was mailed or delivered;
478
(m) the homicide was committed during the act of unlawfully assuming control of any
479
aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
480
valuable consideration for the release of the public conveyance or any passenger, crew member,
481
or any other person aboard, or to direct the route or movement of the public conveyance or
482
otherwise exert control over the public conveyance;
483
(n) the homicide was committed by means of the administration of a poison or of any
484
lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
485
(o) the victim was a person held or otherwise detained as a shield, hostage, or for ransom;
486
or
487
[(p) the actor was under a sentence of life imprisonment or a sentence of death at the time
488
of the commission of the homicide; or]
489
[(q)] (p) the homicide was committed in an especially heinous, atrocious, cruel, or
490
exceptionally depraved manner, any of which must be demonstrated by physical torture, serious
491
physical abuse, or serious bodily injury of the victim before death.
492
(2) Aggravated murder is a capital [offense] felony.
493
(3) (a) It is an affirmative defense to a charge of aggravated murder or attempted
494
aggravated murder that the defendant caused the death of another or attempted to cause the death
495
of another:
496
(i) under the influence of extreme emotional distress for which there is a reasonable
497
explanation or excuse; or
498
(ii) under a reasonable belief that the circumstances provided a legal justification or excuse
499
for his conduct although the conduct was not legally justifiable or excusable under the existing
500
circumstances.
501
(b) Under Subsection (3)(a)(i), emotional distress does not include:
502
(i) a condition resulting from mental illness as defined in Section
76-2-305
; or
503
(ii) distress that is substantially caused by the defendant's own conduct.
504
(c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
505
reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint
506
of a reasonable person under the then existing circumstances.
507
(d) This affirmative defense reduces charges only as follows:
508
(i) aggravated murder to murder; and
509
(ii) attempted aggravated murder to attempted murder.
510
Section 9.
Section
76-8-306
is amended to read:
511
76-8-306. Obstructing justice -- Penalties.
512
(1) A person is guilty of an offense if, with intent to hinder, prevent, or delay the
513
discovery, apprehension, prosecution, conviction, or punishment of another for the commission
514
of a crime, he:
515
(a) knowing an offense has been committed, conceals it from a magistrate;
516
(b) harbors or conceals the offender;
517
(c) provides the offender a weapon;
518
(d) provides the offender transportation, disguise, or other means for avoiding discovery
519
or apprehension;
520
(e) warns the offender of impending discovery or apprehension;
521
(f) conceals, destroys, or alters any physical evidence that might aid in the discovery,
522
apprehension, or conviction of the offender;
523
(g) obstructs by force, intimidation, or deception anyone from performing an act that might
524
aid in the discovery, apprehension, prosecution, or conviction of the offender; or
525
(h) having knowledge that a law enforcement officer has been authorized or has applied
526
for authorization under either Section
77-23a-10
or
77-23a-15
to intercept a wire, electronic, or
527
oral communication, gives notice or attempts to give notice of the possible interception to any
528
person.
529
(2) Except as provided under Subsection (3), an offense under:
530
(a) Subsection (1)(a) or Subsections (1)(d) through (g) is a class B misdemeanor;
531
(b) Subsection (1)(b) regarding harboring or concealing the offender is a class A
532
misdemeanor, except as provided in Subsection (6); and
533
(c) Subsection (1)(c) regarding providing a weapon is a third degree felony.
534
(3) (a) If the person committing an offense under Subsection (1)(a) or Subsections (1)(d)
535
through (g) knows that the offender has committed a second or third degree felony, the offense is
536
a class A misdemeanor.
537
(b) If the person committing an offense under Subsection (1)(b) regarding harboring or
538
concealing the offender knows the offender has committed a second or third degree felony, the
539
offense is a third degree felony.
540
(c) If the person committing an offense under Subsection (1)(c) regarding providing a
541
weapon knows the offender has committed a second or third degree felony, the offense is a second
542
degree felony.
543
(d) If the person committing an offense under Subsections (1)(a) through (g) knows the
544
offender has committed a capital [offense] felony or a felony of the first degree, the offense is a
545
second degree felony.
546
(4) An offense under Subsection (1)(h) is a third degree felony.
547
(5) Subsection (1)(f) does not apply to an act against a juror. Obstructing the function of
548
a juror is addressed in Section
76-8-508.5
.
549
(6) A person is guilty of a third degree felony who:
550
(a) harbors or conceals an offender who has absconded from a facility or from supervision
551
as these offenses are defined in Section
76-8-309.5
; or
552
(b) has escaped from official custody as defined in Section
76-8-309
.
553
(7) The provisions of Section
76-8-316
govern an act or threat against a judge or a member
554
of the Board of Pardons and Parole or the judge's or member's immediate family.
555
Section 10.
Section
76-8-316
is amended to read:
556
76-8-316. Influencing, impeding, or retaliating against a judge or member of the
557
Board of Pardons and Parole.
558
(1) A person is guilty of a third degree felony if the person threatens to assault, kidnap, or
559
murder a judge or a member of the Board of Pardons and Parole with the intent to impede,
560
intimidate, or interfere with the judge or member of the board while engaged in the performance
561
of the judge's or member's official duties or with the intent to retaliate against the judge or member
562
on account of the performance of those official duties.
563
(2) A person is guilty of a second degree felony if the person commits an assault on a judge
564
or a member of the Board of Pardons and Parole with the intent to impede, intimidate, or interfere
565
with the judge or member of the board while engaged in the performance of the judge's or
566
member's official duties, or with the intent to retaliate against the judge or member on account of
567
the performance of those official duties.
568
(3) A person is guilty of a first degree felony if the person commits aggravated assault or
569
attempted murder on a judge or a member of the Board of Pardons and Parole with the purpose to
570
impede, intimidate, or interfere with the judge or member of the board while engaged in the
571
performance of the judge's or member's official duties or with the purpose to retaliate against the
572
judge or member on account of the performance of those official duties.
573
(4) As used in this section:
574
(a) "Immediate family" means parents, spouse, surviving spouse, children, and siblings of
575
the officer.
576
(b) "Judge" means judges of all courts of record and courts not of record.
577
(c) "Judge or member" includes the members of the judge's or member's immediate family.
578
(d) "Member of the Board of Pardons and Parole" means appointed members of the board.
579
(5) A member of the Board of Pardons and Parole is an executive officer for purposes of
580
[Subsections] Subsection
76-5-202
(1)(k).
581
Section 11.
Section
77-16a-201
is amended to read:
582
77-16a-201. Probation.
583
(1) (a) When the court proposes to place on probation a defendant who has pled or is found
584
guilty and mentally ill, it shall request UDC to provide a presentence investigation report regarding
585
whether probation is appropriate for that defendant and, if so, recommending a specific treatment
586
program. If the defendant is placed on probation, that treatment program shall be made a condition
587
of probation, and the defendant shall remain under the jurisdiction of the sentencing court.
588
(b) The court may not place a mentally ill offender who has been convicted of a capital
589
[offense] felony on probation.
590
(2) The period of probation may be for no less than five years, or until the expiration of
591
the defendant's sentence, whichever occurs first. Probation may not be subsequently reduced by
592
the sentencing court without consideration of an updated report on the mental health status of the
593
defendant.
594
(3) (a) Treatment ordered by the court under this section may be provided by or under
595
contract with the department, a mental health facility, a local mental health authority, or, with the
596
approval of the sentencing court, any other public or private mental health provider.
597
(b) The entity providing treatment under this section shall file a report with the defendant's
598
probation officer at least every six months during the term of probation.
599
(c) Any request for termination of probation regarding a defendant who is receiving
600
treatment under this section shall include a current mental health report prepared by the treatment
601
provider.
602
(4) Failure to continue treatment or any other condition of probation, except by agreement
603
with the entity providing treatment and the sentencing court, is a basis for initiating probation
604
violation hearings.
605
(5) The court may not release a mentally ill offender into the community, as a part of
606
probation, if it finds by clear and convincing evidence that he:
607
(a) poses an immediate physical danger to himself or others, including jeopardizing his
608
own or others' safety, health, or welfare if released into the community; or
609
(b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
610
shelter, if released into the community.
611
(6) A mentally ill offender who is not eligible for release into the community under the
612
provisions of Subsection (5) may be placed by the court, on probation, in an appropriate mental
613
health facility.
614
Section 12.
Section
77-16a-202
is amended to read:
615
77-16a-202. Person found guilty and mentally ill -- Commitment to department --
616
Admission to Utah State Hospital.
617
(1) In sentencing and committing a mentally ill offender to the department under
618
Subsection
77-16a-104
(3)(a), the court shall:
619
(a) sentence the offender to a term of imprisonment and order that he be committed to the
620
department and admitted to the Utah State Hospital for care and treatment until transferred to UDC
621
in accordance with Sections
77-16a-203
and
77-16a-204
, making provision for readmission to the
622
Utah State Hospital whenever the requirements and conditions of Section
77-16a-204
are met; or
623
(b) sentence the offender to a term of imprisonment and order that he be committed to the
624
department for care and treatment for no more than 18 months, or until the offender's condition
625
has been stabilized to the point that commitment to the department and admission to the Utah State
626
Hospital is no longer necessary to ensure adequate mental health treatment, whichever occurs first.
627
At the expiration of that time, the court may recall the sentence and commitment, and resentence
628
the offender. A commitment and retention of jurisdiction under this Subsection (1)(b) shall be
629
specified in the sentencing order. If that specification is not included in the sentencing order, the
630
offender shall be committed in accordance with Subsection (1)(a).
631
(2) The court may not retain jurisdiction, under Subsection (1)(b), over the sentence of a
632
mentally ill offender who has been convicted of a capital [offense] felony. In capital cases, the
633
court shall make the findings required by this section after the capital sentencing proceeding
634
mandated by Section
76-3-207
.
635
(3) When an offender is committed to the department and admitted to the Utah State
636
Hospital under Subsection (1)(b), the department shall provide the court with reports of the
637
offender's mental health status every six months. Those reports shall be prepared in accordance
638
with the requirements of Section
77-16a-203
. Additionally, the court may appoint an independent
639
examiner to assess the mental health status of the offender.
640
(4) The period of commitment to the department and admission to the Utah State Hospital,
641
and any subsequent retransfers to the Utah State Hospital made pursuant to Section
77-16a-204
642
may not exceed the maximum sentence imposed by the court. Upon expiration of that sentence,
643
the administrator of the facility where the offender is located may initiate civil proceedings for
644
involuntary commitment in accordance with Title 62A, Chapter 12 or Title 62A, Chapter 5.
645
Section 13.
Section
77-18-5.5
is amended to read:
646
77-18-5.5. Judgment of death -- Defendant to select method -- Time of selection.
647
When a person is convicted of a capital [offense] felony and the judgment of death has
648
been imposed, the defendant is entitled to select, at the time of sentencing, either a firing squad or
649
a lethal intravenous injection as the method of execution. If the defendant does not indicate a
650
preference at that time to the court, the judgment of death shall be executed by lethal intravenous
651
injection.
652
Section 14.
Section
77-20-1
is amended to read:
653
77-20-1. Right to bail -- Denial of bail -- Hearing.
654
(1) A person charged with or arrested for a criminal offense shall be admitted to bail as
655
a matter of right, except if the person is charged with a:
656
(a) capital [offense] felony, when the court finds there is substantial evidence to support
657
the charge;
658
(b) felony committed while on probation or parole, or while free on bail awaiting trial on
659
a previous felony charge, when the court finds there is substantial evidence to support the current
660
felony charge;
661
(c) felony when there is substantial evidence to support the charge and the court finds by
662
clear and convincing evidence that the person would constitute a substantial danger to any other
663
person or to the community, or is likely to flee the jurisdiction of the court, if released on bail; or
664
(d) felony when the court finds there is substantial evidence to support the charge and it
665
finds by clear and convincing evidence that the person violated a material condition of release
666
while previously on bail.
667
(2) Any person who may be admitted to bail may be released either on his own
668
recognizance or upon posting bail, on condition that he appear in court for future court proceedings
669
in the case, and on any other conditions imposed in the discretion of the magistrate or court that
670
will reasonably:
671
(a) ensure the appearance of the accused;
672
(b) ensure the integrity of the court process;
673
(c) prevent direct or indirect contact with witnesses or victims by the accused, if
674
appropriate; and
675
(d) ensure the safety of the public.
676
(3) The initial order denying or fixing the amount of bail shall be issued by the magistrate
677
or court issuing the warrant of arrest or by the magistrate or court presiding over the accused's first
678
judicial appearance. The magistrate or court may rely upon information contained in:
679
(a) the indictment or information;
680
(b) any sworn probable cause statement;
681
(c) information provided by any pretrial services agency; or
682
(d) any other reliable record or source.
683
(4) A motion to modify the initial order may be made by a party at any time upon notice
684
to the opposing party sufficient to permit the opposing party to prepare for hearing and to permit
685
any victim to be notified and be present. Hearing on a motion to modify may be held in
686
conjunction with a preliminary hearing or any other pretrial hearing. The magistrate or court may
687
rely on information as provided in Subsections (3)(a) through (d) and may base its ruling on
688
evidence provided at the hearing so long as each party is provided an opportunity to present
689
additional evidence or information relevant to bail.
690
(5) Subsequent motions to modify bail orders may be made only upon a showing that there
691
has been a material change in circumstances.
692
(6) An appeal may be taken from an order of any court denying bail to the Supreme Court,
693
which shall review the determination under Subsection (1).
694
Section 15.
Section
77-32-201
is amended to read:
695
77-32-201. Definitions.
696
For the purposes of this chapter:
697
(1) "Board" means the Indigent Defense Funds Board created in Section
77-32-401
.
698
(2) "Indigent" means a person qualifying as an indigent under indigency standards
699
established in Part 3, Counsel for Indigents.
700
(3) "Participating county" means a county which has complied with the provisions of this
701
chapter for participation in the Indigent Capital Defense Trust Fund as provided in Sections
702
77-32-602
and
77-32-603
or the Indigent Felony Defense Trust Fund as provided in Sections
703
77-32-702
and
77-32-703
.
704
(4) "Serious offense" means a felony or capital [offense] felony.
705
Section 16.
Section
77-32-601
is amended to read:
706
77-32-601. Establishment of Indigent Capital Defense Trust Fund -- Use of fund --
707
Compensation for indigent legal defense from fund.
708
(1) For purposes of this part, "fund" means the Indigent Capital Defense Trust Fund.
709
(2) There is established an expendable trust fund known as the Indigent Capital Defense
710
Trust Fund which shall be nonlapsing and shall be disbursed by the Division of Finance at the
711
direction of the board and subject to the provisions of this chapter.
712
(3) The fund consists of:
713
(a) monies received from participating counties as provided in Sections
77-32-602
and
714
77-32-603
;
715
(b) appropriations made to the fund by the Legislature as provided in Section
77-32-603
;
716
and
717
(c) interest and earnings from the investment of fund monies.
718
(4) Fund monies shall be invested by the state treasurer with the earnings and interest
719
accruing to the fund.
720
(5) The fund shall be used to assist participating counties with financial resources, as
721
provided in Subsection (6), to fulfill their constitutional and statutory mandates for the provision
722
of an adequate defense for indigents prosecuted for the violation of state laws in cases involving
723
capital [offenses] felonies.
724
(6) Monies allocated to or deposited in this fund shall be used only:
725
(a) to reimburse participating counties for expenditures made for an attorney appointed to
726
represent an indigent, other than a state inmate in a state prison, prosecuted for a capital [offense]
727
felony in a participating county; and
728
(b) for administrative costs pursuant to Section
77-32-401
.
729
Section 17.
Section
77-32-604
is amended to read:
730
77-32-604. Application and qualification for fund money.
731
(1) Any participating county may apply to the board for benefits from the fund if that
732
county has incurred, or reasonably anticipates incurring, expenses in the defense of an indigent for
733
capital [offenses] felonies in violation of state law arising out of a single criminal episode.
734
(2) No application shall be made nor benefits provided from the fund for cases filed before
735
September 1, 1998.
736
(3) If the application of a participating county is approved by the board, the board shall
737
negotiate, enter into, and administer a contract with counsel for the indigent and costs incurred for
738
the defense of that indigent, including fees for counsel and reimbursement for defense costs
739
incurred by defense counsel.
740
(4) Nonparticipating counties are responsible for paying indigent costs in their county and
741
shall not be eligible for any legislative relief. However, nonparticipating counties may provide for
742
payment of indigent costs through an increase in the county tax levy as provided in Section
743
77-32-307
.
744
(5) This part may not become effective unless the board has received resolutions before
745
August 1, 1998, from at least 15 counties adopted as described in Subsection
77-32-602
(2).
746
Section 18.
Section
78-46-5
is amended to read:
747
78-46-5. Trial by jury.
748
(1) A trial jury [shall consist] consists of:
749
(a) twelve persons in a capital case;
750
(b) eight persons in a criminal case which carries a term of incarceration of more than one
751
year as a possible sentence for the most serious offense charged;
752
(c) six persons in a criminal case which carries a term of incarceration of more than six
753
months but not more than one year as a possible sentence for the most serious offense charged;
754
(d) four persons in a criminal case which carries a term of incarceration of six months or
755
less as a possible sentence for the most serious offense charged; and
756
(e) eight persons in a civil case at law except that the jury shall be four persons in a civil
757
case for damages of less than $20,000, exclusive of costs, interest, and attorney fees.
758
(2) Except in the trial of a capital [offense] felony, the parties may stipulate upon the
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record to a jury of a lesser number than established by this section.
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(3) (a) The verdict in a criminal case shall be unanimous.
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(b) The verdict in a civil case shall be by not less than three-fourths of the jurors.
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(4) There is no jury in the trial of small claims cases.
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(5) There is no jury in the adjudication of a minor charged with what would constitute a
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crime if committed by an adult.
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Section 19. Repealer.
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This act repeals:
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Section 76-5-103.5, Aggravated assault by prisoner.
Legislative Review Note
as of 1-16-01 3:09 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.