Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 404 First Substitute (2016GS)

Sponsor

Rep. Wilson, B.

Final action

Governor Signed 3/23/2016

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• broadens the conduct a sentencing court can use to determine restitution amounts;
• includes reasonable expenses for participation in the adjudicative process as pecuniary damages;
• requires that the victim be paid first when a restitution payment is made; and
• makes technical corrections.

Every vote on this bill

Bill text

CRIME VICTIM RESTITUTION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brad R. Wilson
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill makes changes in the composition of restitution orders and the priority for
distribution of restitution payments.
Highlighted Provisions:
This bill:
▸ broadens the conduct a sentencing court can use to determine restitution amounts;
▸ includes reasonable expenses for participation in the adjudicative process as
pecuniary damages;
▸ requires that the victim be paid first when a restitution payment is made; and
▸ makes technical corrections.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
77-27-5
, as last amended by Laws of Utah 2010, Chapter 110
77-27-6
, as last amended by Laws of Utah 2005, Chapter 96
77-38-3
, as last amended by Laws of Utah 2013, Chapters 196 and 445
77-38a-102
, as last amended by Laws of Utah 2015, Chapter 147
77-38a-302
, as last amended by Laws of Utah 2013, Chapter 74
77-38a-404
, as last amended by Laws of Utah 2011, Chapters 131 and 208
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
77-27-5
 is amended to read:
77-27-5.
Board of Pardons and Parole authority.
(1) (a) The Board of Pardons and Parole shall determine by majority decision when and
under what conditions, subject to this chapter and other laws of the state, persons committed to
serve sentences in class A misdemeanor cases at penal or correctional facilities which are under
the jurisdiction of the Department of Corrections, and all felony cases except treason or
impeachment or as otherwise limited by law, may be released upon parole, pardoned, ordered
to pay restitution, or have their fines, forfeitures, or restitution remitted, or their sentences
commuted or terminated.
(b) The board may sit together or in panels to conduct hearings. The chair shall
appoint members to the panels in any combination and in accordance with rules promulgated
by the board, except in hearings involving commutation and pardons. The chair may
participate on any panel and when doing so is chair of the panel. The chair of the board may
designate the chair for any other panel.
(c) No restitution may be ordered, no fine, forfeiture, or restitution remitted, no parole,
pardon, or commutation granted or sentence terminated, except after a full hearing before the
board or the board's appointed examiner in open session. Any action taken under this
subsection other than by a majority of the board shall be affirmed by a majority of the board.
(d) A commutation or pardon may be granted only after a full hearing before the board.
(e) The board may determine restitution as provided in Section 
77-27-6
 and Subsection
77-38a-302
(5)(d)[
(ii)
]
(iii)(A)
.
(2) (a) In the case of original parole grant hearings, rehearings, and parole revocation
hearings, timely prior notice of the time and location of the hearing shall be given to the
defendant, the county or district attorney's office responsible for prosecution of the case, the
sentencing court, law enforcement officials responsible for the defendant's arrest and
conviction, and whenever possible, the victim or the victim's family.
(b) Notice to the victim, his representative, or his family shall include information
provided in Section 
77-27-9.5
, and any related rules made by the board under that section. 
This information shall be provided in terms that are reasonable for the lay person to
understand.
(3) Decisions of the board in cases involving paroles, pardons, commutations or
terminations of sentence, restitution, or remission of fines or forfeitures are final and are not
subject to judicial review. Nothing in this section prevents the obtaining or enforcement of a
civil judgment, including restitution as provided in Section 
77-27-6
.
(4) This chapter may not be construed as a denial of or limitation of the governor's
power to grant respite or reprieves in all cases of convictions for offenses against the state,
except treason or conviction on impeachment. However, respites or reprieves may not extend
beyond the next session of the Board of Pardons and Parole and the board, at that session, shall
continue or terminate the respite or reprieve, or it may commute the punishment, or pardon the
offense as provided. In the case of conviction for treason, the governor may suspend execution
of the sentence until the case is reported to the Legislature at its next session. The Legislature
shall then either pardon or commute the sentence, or direct its execution.
(5) In determining when, where, and under what conditions offenders serving sentences
may be paroled, pardoned, have restitution ordered, or have their fines or forfeitures remitted,
or their sentences commuted or terminated, the board shall consider whether the persons have
made or are prepared to make restitution as ascertained in accordance with the standards and
procedures of Section 
77-38a-302
, as a condition of any parole, pardon, remission of fines or
forfeitures, or commutation or termination of sentence.
(6) In determining whether parole may be terminated, the board shall consider the
offense committed by the parolee, the parole period as provided in Section 
76-3-202
, and in
accordance with Section 
77-27-13
.
Section 2. Section 
77-27-6
 is amended to read:
77-27-6.
Payment of restitution.
(1) When the Board of Pardons and Parole orders the release on parole of an inmate
who has been sentenced to make restitution pursuant to Title 77, Chapter 38a, Crime Victims
Restitution Act, or whom the board has ordered to make restitution, and all or a portion of
restitution is still owing, the board may establish a schedule, including both complete and
court-ordered restitution, by which payment of the restitution shall be made, or order
compensatory or other service in lieu of or in combination with restitution. In fixing the
schedule and supervising the paroled offender's performance, the board may consider the
factors specified in Section 
77-38a-302
.
(2) (a) The board may impose any court order for restitution.
(b) In accordance with Subsection 
77-38a-302
(5)(d)[
(ii)
]
(iii)(A)
, the board may order
that a defendant make restitution for pecuniary damages that were not determined by the court,
unless the board applying the criteria as set forth in Section 
77-38a-302
 determines that
restitution is inappropriate.
(c) Except as provided in Subsection (2)(d), the board shall make all orders of
restitution within 60 days after the termination or expiration of the defendant's sentence.
(d) If, upon termination or expiration of a defendant's sentence, the board has
continuing jurisdiction over the defendant for a separate criminal offense, the board may defer
making an order of restitution until termination or expiration of all sentences for that
defendant.
(3) The board may also make orders of restitution for recovery of any or all costs
incurred by the Department of Corrections or the state or any other agency arising out of the
defendant's needs or conduct.
(4) If the defendant, upon termination or expiration of the sentence owes outstanding
fines, restitution, or other assessed costs, or if the board makes an order of restitution within 60
days after the termination or expiration of the defendant's sentence, the matter shall be referred
to the district court for civil collection remedies. The Board of Pardons and Parole shall
forward a restitution order to the sentencing court to be entered on the judgment docket. The
entry shall constitute a lien and is subject to the same rules as a judgment for money in a civil
judgment.
Section 3. Section 
77-38-3
 is amended to read:
77-38-3.
Notification to victims -- Initial notice, election to receive subsequent
notices -- Form of notice -- Protected victim information -- Pretrial criminal no contact
order.
(1) Within seven days of the filing of felony criminal charges against a defendant, the
prosecuting agency shall provide an initial notice to reasonably identifiable and locatable
victims of the crime contained in the charges, except as otherwise provided in this chapter.
(2) The initial notice to the victim of a crime shall provide information about electing
to receive notice of subsequent important criminal justice hearings listed in Subsections
77-38-2
(5)(a) through (f) and rights under this chapter.
(3) The prosecuting agency shall provide notice to a victim of a crime
:
(a)
 for the important criminal justice hearings, provided in Subsections 
77-38-2
(5)(a)
through (f), which the victim has requested[
.
]
; and
(b) for restitution requests to be submitted as provided in Subsection 
77-38a-302
(5)(d).
(4) (a) The responsible prosecuting agency may provide initial and subsequent notices
in any reasonable manner, including telephonically, electronically, orally, or by means of a
letter or form prepared for this purpose.
(b) In the event of an unforeseen important criminal justice hearing, listed in
Subsections 
77-38-2
(5)(a) through (f) for which a victim has requested notice, a good faith
attempt to contact the victim by telephone shall be considered sufficient notice, provided that
the prosecuting agency subsequently notifies the victim of the result of the proceeding.
(5) (a) The court shall take reasonable measures to ensure that its scheduling practices
for the proceedings provided in Subsections 
77-38-2
(5)(a) through (f) permit an opportunity for
victims of crimes to be notified.
(b) The court shall also consider whether any notification system it might use to
provide notice of judicial proceedings to defendants could be used to provide notice of those
same proceedings to victims of crimes.
(6) A defendant or, if it is the moving party, Adult Probation and Parole, shall give
notice to the responsible prosecuting agency of any motion for modification of any
determination made at any of the important criminal justice hearings provided in Subsections
77-38-2
(5)(a) through (f) in advance of any requested court hearing or action so that the
prosecuting agency may comply with its notification obligation.
(7) (a) Notice to a victim of a crime shall be provided by the Board of Pardons and
Parole for the important criminal justice hearing provided in Subsection 
77-38-2
(5)(g).
(b) The board may provide notice in any reasonable manner, including telephonically,
electronically, orally, or by means of a letter or form prepared for this purpose.
(8) Prosecuting agencies and the Board of Pardons and Parole are required to give
notice to a victim of a crime for the proceedings provided in Subsections 
77-38-2
(5)(a) through
(f) only where the victim has responded to the initial notice, requested notice of subsequent
proceedings, and provided a current address and telephone number if applicable.
(9) (a) Law enforcement and criminal justice agencies shall refer any requests for
notice or information about crime victim rights from victims to the responsible prosecuting
agency.
(b) In a case in which the Board of Pardons and Parole is involved, the responsible
prosecuting agency shall forward any request for notice it has received from a victim to the
Board of Pardons and Parole.
(10) In all cases where the number of victims exceeds 10, the responsible prosecuting
agency may send any notices required under this chapter in its discretion to a representative
sample of the victims.
(11) (a) A victim's address, telephone number, and victim impact statement maintained
by a peace officer, prosecuting agency, Youth Parole Authority, Division of Juvenile Justice
Services, Department of Corrections, and Board of Pardons and Parole, for purposes of
providing notice under this section, is classified as protected as provided in Subsection
63G-2-305
(10).
(b) The victim's address, telephone number, and victim impact statement is available
only to the following persons or entities in the performance of their duties:
(i) a law enforcement agency, including the prosecuting agency;
(ii) a victims' right committee as provided in Section 
77-37-5
;
(iii) a governmentally sponsored victim or witness program;
(iv) the Department of Corrections;
(v) the Utah Office for Victims of Crime;
(vi) the Commission on Criminal and Juvenile Justice; and
(vii) the Board of Pardons and Parole.
(12) The notice provisions as provided in this section do not apply to misdemeanors as
provided in Section 
77-38-5
 and to important juvenile justice hearings as provided in Section
77-38-2
.
(13) (a) When a defendant is charged with a felony crime under Sections 
76-5-301
through 
76-5-310
 regarding kidnapping, human trafficking, and human smuggling; Sections
76-5-401
 through 
76-5-413
 regarding sexual offenses; or Section 
76-10-1306
 regarding
aggravated exploitation of prostitution, the court may, during any court hearing where the
defendant is present, issue a pretrial criminal no contact order:
(i) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
communicating with the victim directly or through a third party;
(ii) ordering the defendant to stay away from the residence, school, place of
employment of the victim, and the premises of any of these, or any specified place frequented
by the victim or any designated family member of the victim directly or through a third party;
and
(iii) ordering any other relief that the court considers necessary to protect and provide
for the safety of the victim and any designated family or household member of the victim.
(b) Violation of a pretrial criminal no contact order issued pursuant to this section is a
third degree felony.
(c) (i) The court shall provide to the victim a certified copy of any pretrial criminal no
contact order that has been issued if the victim can be located with reasonable effort.
(ii) The court shall also transmit the pretrial criminal no contact order to the statewide
domestic violence network in accordance with Section 
78B-7-113
.
Section 4. Section 
77-38a-102
 is amended to read:
77-38a-102.
Definitions.
As used in this chapter:
(1) "Conviction" includes a:
(a) judgment of guilt;
(b) a plea of guilty; or
(c) a plea of no contest.
(2) "Criminal activities" means
:
(a)
 any offense of which the defendant is convicted [
or
]
;
(b)
 any other criminal conduct for which the defendant admits responsibility to the
sentencing court with or without an admission of committing the criminal conduct[
.
]
; or
(c) conduct the sentencing court reasonably determines resulted in pecuniary damages
to a victim.
(3) "Department" means the Department of Corrections.
(4) "Diversion" means suspending criminal proceedings prior to conviction on the
condition that a defendant agree to participate in a rehabilitation program, make restitution to
the victim, or fulfill some other condition.
(5) "Party" means the prosecutor, defendant, or department involved in a prosecution.
(6) "Pecuniary damages" means all demonstrable economic injury, whether or not yet
incurred, 
including those
 which a person could recover in a civil action arising out of the facts
or events constituting the defendant's criminal activities and includes the fair market value of
property taken, destroyed, broken, or otherwise harmed, and losses including lost earnings
,
including those and other expenses reasonably incurred as a result of participation in
adjudicative processes,
 and medical 
and other
 expenses, but excludes punitive or exemplary
damages and pain and suffering.
(7) "Plea agreement" means an agreement entered between the prosecution and
defendant setting forth the special terms and conditions and criminal charges upon which the
defendant will enter a plea of guilty or no contest.
(8) "Plea disposition" means an agreement entered into between the prosecution and
defendant including diversion, plea agreement, plea in abeyance agreement, or any agreement
by which the defendant may enter a plea in any other jurisdiction or where charges are
dismissed without a plea.
(9) "Plea in abeyance" means an order by a court, upon motion of the prosecution and
the defendant, accepting a plea of guilty or of no contest from the defendant but not, at that
time, entering judgment of conviction against him nor imposing sentence upon him on
condition that he comply with specific conditions as set forth in a plea in abeyance agreement.
(10) "Plea in abeyance agreement" means an agreement entered into between the
prosecution and the defendant setting forth the specific terms and conditions upon which,
following acceptance of the agreement by the court, a plea may be held in abeyance.
(11) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
victim, including prejudgment interest, the accrual of interest from the time of sentencing,
insured damages, reimbursement for payment of a reward, and payment for expenses to a
governmental entity for extradition or transportation and as may be further defined by law.
(12) (a) "Reward" means a sum of money:
(i) offered to the public for information leading to the arrest and conviction of an
offender; and
(ii) that has been paid to a person or persons who provide this information, except that
the person receiving the payment may not be a codefendant, an accomplice, or a bounty hunter.
(b) "Reward" does not include any amount paid in excess of the sum offered to the
public.
(13) "Screening" means the process used by a prosecuting attorney to terminate
investigative action, proceed with prosecution, move to dismiss a prosecution that has been
commenced, or cause a prosecution to be diverted.
(14) (a) "Victim" means any person or entity, including the Utah Office for Victims of
Crime, who the court determines has suffered pecuniary damages as a result of the defendant's
criminal activities.
(b) "Victim" may not include a codefendant or accomplice.
Section 5. Section 
77-38a-302
 is amended to read:
77-38a-302.
Restitution criteria.
(1) When a defendant is convicted of criminal activity that has resulted in pecuniary
damages, in addition to any other sentence it may impose, the court shall order that the
defendant make restitution to victims of crime as provided in this chapter, or for conduct for
which the defendant has agreed to make restitution as part of a plea disposition. For purposes
of restitution, a victim has the meaning as defined in Subsection 
77-38a-102
(14) and in
determining whether restitution is appropriate, the court shall follow the criteria and procedures
as provided in Subsections (2) through (5).
(2) In determining restitution, the court shall determine complete restitution and
court-ordered restitution.
(a) "Complete restitution" means restitution necessary to compensate a victim for all
losses caused by the defendant.
(b) "Court-ordered restitution" means the restitution the court having criminal
jurisdiction orders the defendant to pay as a part of the criminal sentence [
at the time of
sentencing or within one year after sentencing
].
(c) Complete restitution and court-ordered restitution shall be determined as provided
in Subsection (5).
(3) If the court determines that restitution is appropriate or inappropriate under this
part, the court shall make the reasons for the decision part of the court record.
(4) If the defendant objects to the imposition, amount, or distribution of the restitution,
the court shall allow the defendant a full hearing on the issue.
(5) (a) For the purpose of determining restitution for an offense, the offense shall
include any criminal conduct admitted by the defendant to the sentencing court 
, or any criminal
conduct that the sentencing court reasonably determines resulted in pecuniary damages to a
victim,
 or to which the defendant agrees to pay restitution. A victim of an offense that involves
as an element a scheme, a conspiracy, or a pattern of criminal activity, includes any person
directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or
pattern.
(b) In determining the monetary sum and other conditions for complete restitution, the
court shall consider all relevant facts, including:
(i) the cost of the damage or loss if the offense resulted in damage to or loss or
destruction of property of a victim of the offense;
(ii) the cost of necessary medical and related professional services and devices relating
to physical or mental health care, including nonmedical care and treatment rendered in
accordance with a method of healing recognized by the law of the place of treatment;
(iii) the cost of necessary physical and occupational therapy and rehabilitation;
(iv) the income lost by the victim as a result of the offense [
if the offense resulted in
bodily injury to a victim
];
(v) [
up to five days of
] the individual victim's 
reasonable
 determinable wages that are
lost due to theft of or damage to tools or equipment items of a trade that were owned by the
victim and were essential to the victim's current employment at the time of the offense; and
(vi) the cost of necessary funeral and related services if the offense resulted in the death
of a victim.
(c) In determining the monetary sum and other conditions for court-ordered restitution,
the court shall consider:
(i) the factors listed in Subsections (5)(a) and (b);
(ii) the financial resources of the defendant, as disclosed in the financial declaration
described in Section 
77-38a-204
;
(iii) the burden that payment of restitution will impose, with regard to the other
obligations of the defendant;
(iv) the ability of the defendant to pay restitution on an installment basis or on other
conditions to be fixed by the court;
(v) the rehabilitative effect on the defendant of the payment of restitution and the
method of payment; and
(vi) other circumstances that the court determines may make restitution inappropriate.
[
(d) (i) Except as provided in Subsection (5)(d)(ii), the court shall determine complete
restitution and court-ordered restitution, and shall make all restitution orders at the time of
sentencing if feasible, otherwise within one year after sentencing.
]
(d) (i) The prosecuting agency shall submit all requests for complete restitution and
court ordered restitution to the court at the time of sentencing if feasible, otherwise within one
year after sentencing.
(ii) If a defendant is placed on probation pursuant to Section 
77-18-1
:
(A) the court shall determine complete restitution and court ordered restitution; and
(B) the time period for determination of complete restitution and court ordered
restitution may be extended by the court upon a finding of good cause, but may not exceed the
period of the probation term served by the defendant.
(iii) If the defendant is committed to prison:
[
(ii) Any
] 
(A) any
 pecuniary damages that have not been determined by the court
within one year after sentencing may be determined by the Board of Pardons and Parole[
.
]
; and
[
(e) The
] 
(B) the
 Board of Pardons and Parole may, within one year after sentencing,
refer an order of judgment and commitment back to the court for determination of restitution.
Section 6. Section 
77-38a-404
 is amended to read:
77-38a-404.
Priority.
(1) Restitution payments made pursuant to a court order shall be disbursed to victims
within 60 days of receipt from the defendant by the court or department provided:
(a) the victim has complied with Subsection 
77-38a-203
(1)(b);
(b) if the defendant has tendered a negotiable instrument, funds from the financial
institution are actually received; and
(c) the payment to the victim is at least $5, unless the payment is the final payment.
(2) If restitution to more than one person, agency, or entity is required at the same time,
the department shall establish the following priorities of payment, except as provided in
Subsection (4):
(a) the crime victim;
(b) the Utah Office for Victims of Crime;
(c) any other government agency which has provided reimbursement to the victim as a
result of the offender's criminal conduct;
(d) the person, entity, or governmental agency that has offered and paid a reward under
Section 
76-3-201.1
 or 
78A-6-117
;
(e) any insurance company which has provided reimbursement to the victim as a result
of the offender's criminal conduct; and
(f) any county correctional facility to which the defendant is required to pay restitution
under Subsection 
76-3-201
(6).
(3) Restitution ordered under Subsection (2)(f) is paid after criminal fines and
surcharges are paid.
(4) If the offender is required under Section 
53-10-404
 to reimburse the department for
the cost of obtaining the offender's DNA specimen, this reimbursement is the next priority after
restitution to the crime victim under Subsection (2)(a).
(5) All money collected for court-ordered obligations from offenders by the department
will be applied:
(a) first, to victim restitution[
, except the
]
;
(b) second, to any
 current and past due amount of $30 per month required to be
collected by the department under Section 
64-13-21
, if applicable; and
[
(b) second
] 
(c) third
, if applicable, to the cost of obtaining a DNA specimen under
Subsection (4).
(6) Restitution owed to more than one victim shall be disbursed to each victim
according to the percentage of each victim's share of the total restitution order.
Legislative Review Note
Office of Legislative Research and General Counsel