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First Substitute S.B. 150
Senator Gregory S. Bell proposes the following substitute bill:
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RESTITUTION AMENDMENTS
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2006 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Gregory S. Bell
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House Sponsor:
Scott L Wyatt
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LONG TITLE
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General Description:
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This bill requires the full amount of restitution to be paid before a person can be eligible
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for an expungement.
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Highlighted Provisions:
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This bill:
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. requires a petitioner to pay the full amount of restitution ordered by a court for the
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criminal conviction for which the person in seeking an expungement.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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76-3-402, as last amended by Chapter 7, Laws of Utah 1991
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77-18-12, as last amended by Chapter 2, Laws of Utah 2005
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
76-3-402
is amended to read:
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76-3-402. Conviction of lower degree of offense.
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(1) If the court, having regard to the nature and circumstances of the offense of which
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the defendant was found guilty and to the history and character of the defendant, concludes it
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would be unduly harsh to record the conviction as being for that degree of offense established
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by statute and to sentence the defendant to an alternative normally applicable to that offense,
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the court may unless otherwise specifically provided by law enter a judgment of conviction for
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the next lower degree of offense and impose sentence accordingly.
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(2) If a conviction is for a third degree felony the conviction is considered to be for a
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class A misdemeanor if:
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(a) the judge designates the sentence to be for a class A misdemeanor and the sentence
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imposed is within the limits provided by law for a class A misdemeanor; or
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(b) (i) the imposition of the sentence is stayed and the defendant is placed on probation,
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whether committed to jail as a condition of probation or not;
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(ii) the defendant is subsequently discharged without violating his probation; and
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(iii) the judge upon motion and notice to the prosecuting attorney, and a hearing if
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requested by either party or the court, finds it is in the interest of justice that the conviction be
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considered to be for a class A misdemeanor.
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(3) An offense may be reduced only one degree under this section unless the prosecutor
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specifically agrees in writing or on the court record that the offense may be reduced two
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degrees. In no case may an offense be reduced under this section by more than two degrees.
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(4) This section may not be construed to preclude any person from obtaining or being
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granted an expungement of his record as provided by law.
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(5) A judgment for a conviction under Subsection (2)(b) may not be entered if there
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remains any unpaid balance on court ordered restitution for that particular offense entered
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pursuant to Section
77-38a-302
.
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Section 2.
Section
77-18-12
is amended to read:
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77-18-12. Grounds for denial of certificate of eligibility -- Effect of prior
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convictions.
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(1) The division shall issue a certificate of eligibility to a petitioner seeking to obtain
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expungement for a criminal record unless prior to issuing a certificate of eligibility the division
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finds, through records of a governmental agency, including national criminal data bases that:
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(a) the conviction for which expungement is sought is:
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(i) a capital felony;
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(ii) a first degree felony;
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(iii) a second degree forcible felony;
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(iv) automobile homicide;
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(v) a felony violation of Section
41-6a-502
;
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(vi) a conviction involving a sexual act against a minor;
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(vii) any registerable sex offense as defined in Subsection
77-27-21.5
(1)[(d)] (e); or
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(viii) an attempt, solicitation, or conspiracy to commit any offense listed in Subsection
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77-27-21.5
(1)[(d)] (e);
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(b) the petitioner's record includes two or more convictions for any type of offense
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which would be classified as a felony under Utah law, not arising out of a single criminal
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episode, regardless of the jurisdiction in which the convictions occurred;
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(c) the petitioner has previously obtained expungement in any jurisdiction of a crime
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which would be classified as a felony in Utah;
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(d) the petitioner has previously obtained expungement in any jurisdiction of two or
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more convictions which would be classified as misdemeanors in Utah unless the convictions
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would be classified as class B or class C misdemeanors in Utah and 15 years have passed since
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these misdemeanor convictions;
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(e) the petitioner was convicted in any jurisdiction, subsequent to the conviction for
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which expungement is sought and within the time periods as provided in Subsection (2), of a
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crime which would be classified in Utah as a felony, misdemeanor, or infraction;
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(f) the [person] petitioner has a combination of three or more convictions not arising
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out of a single criminal episode including any conviction for an offense which would be
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classified under Utah law as a class B or class A misdemeanor or as a felony, including any
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misdemeanor and felony convictions previously expunged, regardless of the jurisdiction in
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which the conviction or expungement occurred; [or]
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(g) a proceeding involving a crime is pending or being instituted in any jurisdiction
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against the petitioner[.]; or
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(h) the petitioner has not paid the full amount of restitution ordered by a court pursuant
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to Section
77-38a-302
, or by the Board of Pardons pursuant to Section
77-27-6
on the
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conviction for which the person is seeking an expungement.
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(2) A conviction may not be included for purposes of Subsection (1)(e), and a
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conviction may not be considered for expungement until, after the petitioner's release from
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incarceration, parole, or probation, whichever occurs last and all fines ordered by the court
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have been satisfied, at least the following period of time has elapsed:
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(a) seven years in the case of a felony;
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(b) ten years in the case of:
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(i) a misdemeanor conviction or the equivalent of a misdemeanor conviction as defined
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in Subsection
41-6a-501
(2); or
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(ii) a felony violation of Subsection
58-37-8
(2)(g);
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(c) five years in the case of a class A misdemeanor;
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(d) three years in the case of any other misdemeanor or infraction under Title 76, Utah
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Criminal Code; or
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(e) 15 years in the case of multiple class B or class C misdemeanors.
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(3) A petitioner who would not be eligible to receive a certificate of eligibility under
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Subsection (1)(d) or (f) may receive a certificate of eligibility for one additional expungement
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if at least 15 years have elapsed since the last of any of the following:
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(a) release from incarceration, parole, or probation relating to the most recent
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conviction; and
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(b) any other conviction which would have prevented issuance of a certificate of
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eligibility under Subsection (1)(e).
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(4) If, after reasonable research, a disposition for an arrest on the criminal history file is
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unobtainable, the division may issue a special certificate giving discretion of eligibility to the
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court.
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