Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 181 (2016GS)

Sponsor

Sen. Hillyard, L.

Final action

Governor Signed 3/17/2016

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• provides that, in a legal action filed against a county, a district court judge of the defendant county may transfer venue to any county contiguous to the defendant county;
• provides that a motion to transfer venue may be filed ex parte;
• clarifies provisions regarding appointment of counsel in juvenile court delinquency cases;
• clarifies justice court jurisdiction;
• removes a defendant's entitlement to a hearing de novo in the district court on a finding of a plea in abeyance violation;
• provides that a defendant is entitled to a hearing de novo in the district court on a sentence following a finding of a plea in abeyance violation;
• requires that a notice of appeal from a criminal case in justice court be filed within 28 days;
• provides that a defendant is entitled to a hearing de novo in the district court on:
• an order denying a motion to withdraw a plea if the plea is held in abeyance and the motion to withdraw the plea is filed within 28 days of entry of the plea;
• a post-sentence order fixing total or court ordered restitution; or
• an order denying expungement;
• provides that a prosecutor is entitled to a hearing de novo in the district court if:
• an appeal is filed within 28 days of the court entering a certain judgment or order; or

Every vote on this bill

Bill text

JUDICIARY AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Lyle W. Hillyard
House Sponsor: 
V. Lowry Snow
LONG TITLE
General Description:
This bill makes amendments related to the judiciary.
Highlighted Provisions:
This bill:
▸ provides that, in a legal action filed against a county, a district court judge of the
defendant county may transfer venue to any county contiguous to the defendant
county;
▸ provides that a motion to transfer venue may be filed ex parte;
▸ clarifies provisions regarding appointment of counsel in juvenile court delinquency
cases;
▸ clarifies justice court jurisdiction;
▸ removes a defendant's entitlement to a hearing de novo in the district court on a
finding of a plea in abeyance violation;
▸ provides that a defendant is entitled to a hearing de novo in the district court on a
sentence following a finding of a plea in abeyance violation;
▸ requires that a notice of appeal from a criminal case in justice court be filed within
28 days;
▸ provides that a defendant is entitled to a hearing de novo in the district court on:
• an order denying a motion to withdraw a plea if the plea is held in abeyance and
the motion to withdraw the plea is filed within 28 days of entry of the plea;
• a post-sentence order fixing total or court ordered restitution; or
• an order denying expungement;
▸ provides that a prosecutor is entitled to a hearing de novo in the district court if:
• an appeal is filed within 28 days of the court entering a certain judgment or
order; or
• an appeal is filed within 28 days of the court entering an order for total
restitution at less than the crime victim requested, or an order granting an
expungement that was opposed by the prosecutor or victim;
▸ removes the endorsement requirement for the number of days within which a
defendant is required to appear and defend a forcible detainer action included in a
summons; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-7-502
, as renumbered and amended by Laws of Utah 2008, Chapter 382
77-7-25
, as renumbered and amended by Laws of Utah 2005, Chapter 2
78A-6-1111
, as last amended by Laws of Utah 2015, Chapter 338
78A-7-106
, as last amended by Laws of Utah 2012, Chapter 205
78A-7-118
, as last amended by Laws of Utah 2015, Chapters 99 and 258
78B-2-213
, as renumbered and amended by Laws of Utah 2008, Chapter 3
78B-6-807
, as last amended by Laws of Utah 2008, Chapter 121 and renumbered and
amended by Laws of Utah 2008, Chapter 3
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-7-502
 is amended to read:
63G-7-502.
Venue of actions.
(1) Actions against the state may be brought in the county in which the claim arose or
in Salt Lake County.
(2) (a) Actions against a county may be brought in the county in which the claim arose,
or in the defendant county[
, or, upon leave granted by a
]
.
(b) (i) A
 district court judge of the defendant county[
, in
] 
may transfer venue to
 any
county contiguous to the defendant county.
[
(b) Leave
] 
(ii) A motion to transfer
 may be [
granted
] 
filed
 ex parte.
(3) Actions against all other political subdivisions, including cities and towns, shall be
brought in the county in which the political subdivision is located or in the county in which the
claim arose.
Section 2. Section 
77-7-25
 is amended to read:
77-7-25.
Keeping of records -- Making and forwarding of abstract upon
conviction or forfeiture of bail -- Form and contents -- Official misconduct.
(1) A magistrate or judge of a court shall keep a full record of each case in which a
person is charged with:
(a) a violation of this chapter; or
(b) any other law regulating the operation of a motor vehicle on the highway.
(2) (a) Within [
] 
five
 days after the conviction or forfeiture of bail of a person on a
charge of violating a provision of this chapter or other law regulating the operation of a motor
vehicle on the highway, the magistrate of the court or clerk of the court in which the conviction
was made or bail was forfeited shall prepare and immediately forward to the department an
abstract of the record of the court covering the case in which the person was convicted or
forfeited bail.
(b) The abstract shall be certified by the person required to prepare the abstract to be
true and correct.
(c) A report under this Subsection (2) is not required for a conviction involving the
illegal parking or standing of a vehicle.
(3) The abstract must be made in a manner specified by the Driver License Division
and shall include the:
(a) name and address of the party charged;
(b) number, if any, of the person's driver license;
(c) license plate number of the vehicle involved;
(d) nature of the offense;
(e) date of hearing;
(f) plea;
(g) judgment, or whether bail was forfeited; and
(h) amount of the fine or forfeiture.
(4) A court shall provide a copy of the report to the Driver License Division on the
conviction of a person of manslaughter or other felony in which a vehicle was used.
(5) The failure, refusal, or neglect of a judicial officer to comply with the requirements
of this section constitutes misconduct in office and is grounds for removal.
(6) The Driver License Division shall classify and disclose all abstracts received in
accordance with Section 
53-3-109
.
Section 3. Section 
78A-6-1111
 is amended to read:
78A-6-1111.
Right to counsel -- Appointment of counsel for indigent -- Costs.
(1) (a) In any action in juvenile court initiated by the state, a political subdivision of the
state, or a private party, the parents, legal guardian, and the minor, where applicable, shall be
informed that they may be represented by counsel at every stage of the proceedings.
(b) In any action initiated by a private party, the parents or legal guardian shall have the
right to employ counsel of their own choice at their own expense.
(c) If, in any action initiated by the state or a political subdivision of the state under
Part 3, Abuse, Neglect, and Dependency Proceedings; Part 5, Termination of Parental Rights
Act; or Part 10, Adult Offenses, of this chapter or under Section 
78A-6-1101
, a parent or legal
guardian requests an attorney and is found by the court to be indigent, counsel shall be
appointed by the court to represent the parent or legal guardian in all proceedings directly
related to the petition or motion filed by the state, or a political subdivision of the state, subject
to the provisions of this section.
(d) In any action initiated by the state, a political subdivision of the state, or a private
party under Part 3, Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of
Parental Rights Act, of this chapter, the child shall be represented by a guardian ad litem in
accordance with Sections 
78A-6-317
 and 
78A-6-902
. The child shall also be represented by an
attorney guardian ad litem in other actions initiated under this chapter when appointed by the
court under Section 
78A-6-902
 or as otherwise provided by law.
(e) In any action initiated by the state or a political subdivision of the state under Part
6, Delinquency and Criminal Actions, or Part 7, Transfer of Jurisdiction, of this chapter, or
against a minor under Section 
78A-6-1101
, the parents or legal guardian and the minor shall be
informed that the minor has the right to be represented by counsel at every stage of the
proceedings.
(i) In cases where [
a minor is facing a felony level offense
] 
a petition or information
alleging a felony-level offense is filed
, the court shall appoint counsel, who shall appear until
counsel is retained on the minor's behalf. The minor may not waive counsel unless the minor
has had a meaningful opportunity to consult with a defense attorney. The court shall make
findings on the record, taking into consideration the minor's unique circumstances and
attributes, that the waiver is knowing and voluntary and the minor understands the
consequences of waiving the right to counsel.
(ii) In all other [
situations
] 
cases in which a petition is filed
 the right to counsel may
not be waived by a minor unless there has been a finding on the record, taking into
consideration the minor's unique circumstances and attributes, that the waiver is knowing and
voluntary, and the minor understands the consequences of waiving the right to counsel.
(iii) If the minor is found to be indigent, counsel shall be appointed by the court to
represent the minor in all proceedings directly related to the petition or motion filed by the state
or a political subdivision of the state, subject to the provisions of this section.
(f) Indigency of a parent, legal guardian, or minor shall be determined in accordance
with the process and procedure defined in Section 
77-32-202
. The court shall take into account
the income and financial ability of the parent or legal guardian to retain counsel in determining
the indigency of the minor.
(g) The cost of appointed counsel for a party found to be indigent, including the cost of
counsel and expense of the first appeal, shall be paid by the county in which the trial court
proceedings are held. Counties may levy and collect taxes for these purposes.
(2) Counsel appointed by the court may not provide representation as court-appointed
counsel for a parent or legal guardian in any action initiated by, or in any proceeding to modify
court orders in a proceeding initiated by, a private party.
(3) If the county responsible to provide legal counsel for an indigent under Subsection
(1)(g) has arranged by contract to provide services, the court shall appoint the contracting
attorney as legal counsel to represent that indigent.
(4) The court may order a parent or legal guardian for whom counsel is appointed, and
the parents or legal guardian of any minor for whom counsel is appointed, to reimburse the
county for the cost of appointed counsel.
(5) The state, or an agency of the state, may not be ordered to reimburse the county for
expenses incurred under Subsection (1)(g).
Section 4. Section 
78A-7-106
 is amended to read:
78A-7-106.
Jurisdiction.
(1) Justice courts have jurisdiction over class B and C misdemeanors, violation of
ordinances, and infractions committed within their territorial jurisdiction by a person 18 years
of age or older.
(2) Except those offenses over which the juvenile court has exclusive jurisdiction,
justice courts have jurisdiction over the following [
class B and C misdemeanors, violation of
ordinances, and infractions
] 
offenses
 committed within their territorial jurisdiction by a person
who is
or 17
 years of age [
or older
]:
(a) class C misdemeanor and infraction violations of Title 53, Chapter 3, Part 2, Driver
Licensing Act; and
(b) class B and C misdemeanor and infraction violations of:
[
(a)
] 
(i)
 Title 23, Wildlife Resources Code of Utah;
[
(b)
] 
(ii)
 Title 41, Chapter 1a, Motor Vehicle Act;
[
(c)
] 
(iii)
 Title 41, Chapter 6a, Traffic Code;
[
(d)
] 
(iv)
 Title 41, Chapter 12a, Financial Responsibility of Motor Vehicle Owners and
Operators Act;
[
(e)
] 
(v)
 Title 41, Chapter 22, Off-Highway Vehicles;
[
(f)
] 
(vi)
 Title 73, Chapter 18, State Boating Act;
[
(g)
] 
(vii)
 Title 73, Chapter 18a, Boating - Litter and Pollution Control;
[
(h)
] 
(viii)
 Title 73, Chapter 18b, Water Safety; and
[
(i)
] 
(ix)
 Title 73, Chapter 18c, Financial Responsibility of Motorboat Owners and
Operators Act.
[
(3) Justice Courts have jurisdiction over class C misdemeanor violations of Title 53,
Chapter 3, Part 2, Driver Licensing Act.
]
[
(4)
] 
(3)
 As used in this section, "the court's jurisdiction" means the territorial
jurisdiction of a justice court.
[
(5)
] 
(4)
 An offense is committed within the territorial jurisdiction of a justice court if:
(a) conduct constituting an element of the offense or a result constituting an element of
the offense occurs within the court's jurisdiction, regardless of whether the conduct or result is
itself unlawful;
(b) either a person committing an offense or a victim of an offense is located within the
court's jurisdiction at the time the offense is committed;
(c) either a cause of injury occurs within the court's jurisdiction or the injury occurs
within the court's jurisdiction;
(d) a person commits any act constituting an element of an inchoate offense within the
court's jurisdiction, including an agreement in a conspiracy;
(e) a person solicits, aids, or abets, or attempts to solicit, aid, or abet another person in
the planning or commission of an offense within the court's jurisdiction;
(f) the investigation of the offense does not readily indicate in which court's
jurisdiction the offense occurred, and:
(i) the offense is committed upon or in any railroad car, vehicle, watercraft, or aircraft
passing within the court's jurisdiction;
(ii) (A) the offense is committed on or in any body of water bordering on or within this
state if the territorial limits of the justice court are adjacent to the body of water; and
(B) as used in Subsection (5)(f)(ii)(A), "body of water" includes any stream, river, lake,
or reservoir, whether natural or man-made;
(iii) a person who commits theft exercises control over the affected property within the
court's jurisdiction; or
(iv) the offense is committed on or near the boundary of the court's jurisdiction;
(g) the offense consists of an unlawful communication that was initiated or received
within the court's jurisdiction; or
(h) jurisdiction is otherwise specifically provided by law.
[
(6)
] 
(5)
 A justice court judge may transfer a criminal matter in which the defendant is
a child to the juvenile court for further proceedings if the justice court judge determines and the
juvenile court concurs that the best interests of the minor would be served by the continuing
jurisdiction of the juvenile court.
[
(7)
] 
(6)
 Justice courts have jurisdiction of small claims cases under Title 78A, Chapter
8, Small Claims Courts, if a defendant resides in or the debt arose within the territorial
jurisdiction of the justice court.
Section 5. Section 
78A-7-118
 is amended to read:
78A-7-118.
Appeals from justice court -- Trial or hearing de novo in district
court.
(1) In a criminal case, a defendant is entitled to a trial de novo in the district court only
if the defendant files a notice of appeal within [
] 
 days of:
(a) sentencing, except as provided in Subsection (4)(b); or
(b) a plea of guilty or no contest in the justice court that is held in abeyance.
(2) Upon filing a proper notice of appeal, any term of a sentence imposed by the justice
court shall be stayed as provided for in Section 
77-20-10
 and the Rules of Criminal Procedure.
(3) If an appeal under Subsection (1) is of a plea entered pursuant to negotiation with
the prosecutor, and the defendant did not reserve the right to appeal as part of the plea
negotiation, the negotiation is voided by the appeal.
(4) A defendant convicted and sentenced in justice court is entitled to a hearing de
novo in the district court on the following matters, if the defendant files a notice of appeal
within [
] 
 days of:
(a) an order revoking probation;
(b) [
an order entering a judgment of guilt pursuant to the person's failure
] 
imposition of
a sentence, following a determination that a defendant failed
 to fulfill the terms of a plea in
abeyance agreement;
[
(c) a sentence entered pursuant to Subsection (4)(b); or
]
[
(d)
] 
(c)
 an order denying a motion to withdraw a plea[
.
]
, if the plea is being held in
abeyance and the motion to withdraw the plea is filed within 28 days of the entry of the plea;
(d) a postsentence order fixing total or court ordered restitution; or
(e) an order denying expungement.
(5) The prosecutor is entitled to a hearing de novo in the district court [
on
] 
if an appeal
is filed within 28 days of the court entering
:
(a) a final judgment of dismissal;
(b) an order arresting judgment;
(c) an order terminating the prosecution because of a finding of double jeopardy or
denial of a speedy trial;
(d) a judgment holding invalid any part of a statute or ordinance;
(e) a pretrial order excluding evidence, when the prosecutor certifies that exclusion of
that evidence prevents continued prosecution of an infraction or class C misdemeanor;
(f) a pretrial order excluding evidence, when the prosecutor certifies that exclusion of
that evidence impairs continued prosecution of a class B misdemeanor; [
or
]
(g) an order granting a motion to withdraw a plea of guilty or no contest[
.
]
;
[
(6) A notice of appeal for a hearing de novo in the district court on a pretrial order
excluding evidence under Subsection (5)(e) or (f) shall be filed within 30 days of the order
excluding the evidence.
]
(h) an order fixing total restitution at an amount less than requested by a crime victim;
or
(i) an order granting an expungement, if the expungement was opposed by the
prosecution or a victim before the order was entered.
[
(7)
] 
(6)
 Upon entering a decision in a hearing de novo, the district court shall remand
the case to the justice court unless:
(a) the decision results in immediate dismissal of the case;
(b) with agreement of the parties, the district court consents to retain jurisdiction; or
(c) the defendant enters a plea of guilty or no contest in the district court.
[
(8)
] 
(7)
 The district court shall retain jurisdiction over the case on trial de novo.
[
(9)
] 
(8)
 The decision of the district court is final and may not be appealed unless the
district court rules on the constitutionality of a statute or ordinance.
Section 6. Section 
78B-2-213
 is amended to read:
78B-2-213.
What constitutes adverse possession not under written instrument.
Land is considered to be possessed and occupied adversely by a person claiming title
not founded upon a written instrument, judgment, or decree in the following cases only, where:
(1) it has been protected by a substantial enclosure;
(2) it has been usually cultivated or improved; [
and
] 
or
(3) labor or money amounting to the sum of $5 per acre has been expended upon dams,
canals, embankments, aqueducts, or otherwise for the purpose of irrigating the land.
Section 7. Section 
78B-6-807
 is amended to read:
78B-6-807.
Allegations permitted in complaint -- Time for appearance -- Service
of summons.
(1) The plaintiff, in his complaint:
(a) shall set forth the facts on which he seeks to recover;
(b) may set forth any circumstances of fraud, force, or violence which may have
accompanied the alleged forcible entry, or forcible or unlawful detainer; and
(c) claim damages or compensation for the occupation of the premises, or both.
(2) If the unlawful detainer charged is after default in the payment of rent, the
complaint shall state the amount of rent due.
(3) [
A judge, court clerk, or plaintiff's counsel shall endorse on the summons
] 
The
summons shall include
 the number of days within which the defendant is required to appear
and defend the action, which shall be three business days from the date of service, unless the
defendant objects to the number of days, and the court determines that the facts of the case
should allow more time.
(4) The court may authorize service by publication or mail for cause shown.
(5) Service by publication is complete one week after publication.
(6) Service by mail is complete three days after mailing.
(7) The summons shall be changed in form to conform to the time of service as
ordered, and shall be served as in other cases.