Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 28 Second Substitute (2022GS)

Sponsor

Rep. Lisonbee, K.

Final action

Governor Signed 3/22/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• allows a jail to hold a parolee or probationer under certain circumstances;
• clarifies the information a court and the Board of Pardons and Parole shall consider under the sentencing guidelines when an individual violates a provision of probation or parole;
• requires the department of corrections to detain an individual who violates a condition of probation or parole if the violation was a particular type of offense;
• requires a court to review costs that a defendant will be charged for supervisory services;
• clarifies which offenders, the Department of Corrections, a local government agency, or a private probation provider may supervise;
• modifies the duties of private probation providers;
• requires law enforcement agencies to perform certain tasks regarding supervision and presentence investigation reports;
• requires the Department of Corrections to provide a victim notice regarding:
• the expiration of an offender's probation or parole term; and
• the victim's ability to obtain a continuous protective order;
• allows a court and the Board of Pardons and Parole to impose a period of incarceration that differs from the sentencing guidelines; and
• makes technical changes.

Every vote on this bill

Bill text

OFFENDER SUPERVISION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Karianne Lisonbee
Senate Sponsor: 
Michael S. Kennedy
LONG TITLE
General Description:
This bill amends provisions regarding individuals subject to probation and parole.
Highlighted Provisions:
This bill:
▸ allows a jail to hold a parolee or probationer under certain circumstances;
▸ clarifies the information a court and the Board of Pardons and Parole shall consider
under the sentencing guidelines when an individual violates a provision of probation
or parole;
▸ requires the department of corrections to detain an individual who violates a
condition of probation or parole if the violation was a particular type of offense;
▸ requires a court to review costs that a defendant will be charged for supervisory
services;
▸ clarifies which offenders, the Department of Corrections, a local government
agency, or a private probation provider may supervise;
▸ modifies the duties of private probation providers;
▸ requires law enforcement agencies to perform certain tasks regarding supervision
and presentence investigation reports;
▸ requires the Department of Corrections to provide a victim notice regarding:
• the expiration of an offender's probation or parole term; and
• the victim's ability to obtain a continuous protective order;
▸ allows a court and the Board of Pardons and Parole to impose a period of
incarceration that differs from the sentencing guidelines; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
17-22-5.5
, as last amended by Laws of Utah 2021, Second Special Session, Chapter 4
58-50-9
, as last amended by Laws of Utah 2021, Chapter 260
63M-7-404
, as last amended by Laws of Utah 2021, Chapter 173
64-13-14.7
, as last amended by Laws of Utah 2008, Chapter 382
64-13-29
, as last amended by Laws of Utah 2021, Chapter 173
77-18-103
, as enacted by Laws of Utah 2021, Chapter 260
77-18-105
, as enacted by Laws of Utah 2021, Chapter 260 and last amended by
Coordination Clause, Laws of Utah 2021, Chapter 246
77-18-108
, as enacted by Laws of Utah 2021, Chapter 260 and last amended by
Coordination Clause, Laws of Utah 2021, Chapter 260
77-27-11
, as last amended by Laws of Utah 2021, Chapter 260
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
17-22-5.5
 is amended to read:
17-22-5.5.
Sheriff's classification of jail facilities -- Maximum operating capacity
of jail facilities -- Transfer or release of prisoners -- Limitation -- Records regarding
release.
(1) (a) Except as provided in Subsection (4), a county sheriff shall determine:
(i) subject to Subsection (1)(b), the classification of each jail facility or section of a jail
facility under the sheriff's control;
(ii) the nature of each program conducted at a jail facility under the sheriff's control;
and
(iii) the internal operation of a jail facility under the sheriff's control.
(b) A classification under Subsection (1)(a)(i) of a jail facility may not violate any
applicable zoning ordinance or conditional use permit of the county or municipality.
(2) Except as provided in Subsection (4), each county sheriff shall:
(a) with the approval of the county legislative body, establish a maximum operating
capacity for each jail facility under the sheriff's control, based on facility design and staffing;
and
(b) upon a jail facility reaching the jail facility's maximum operating capacity:
(i) transfer prisoners to another appropriate facility:
(A) under the sheriff's control; or
(B) available to the sheriff by contract;
(ii) release prisoners:
(A) to a supervised release program, according to release criteria established by the
sheriff; or
(B) to another alternative incarceration program developed by the sheriff; or
(iii) admit prisoners in accordance with law and a uniform admissions policy imposed
equally upon all entities using the county jail.
(3) (a) The sheriff shall keep records of the release status and the type of release
program or alternative incarceration program for any prisoner released under Subsection
(2)(b)(ii).
(b) The sheriff shall make these records available upon request to the Department of
Corrections, the Judiciary, and the Commission on Criminal and Juvenile Justice.
(4) This section may not be construed to authorize a sheriff to modify provisions of a
contract with the Department of Corrections to house in a county jail an individual sentenced to
the Department of Corrections.
(5) Regardless of whether a jail facility has reached the jail facility's maximum
operating capacity under Subsection (2), a sheriff may release an individual from a jail facility
in accordance with Section 
77-20-203
 or 
77-20-204
.
(6) (a) Subject to Subsection (6)(c), a jail facility shall detain an individual for up to 24
hours from booking if:
(i) the individual is on supervised probation or parole and that information is
reasonably available; and
(ii) the individual was arrested for:
(A) a violent felony as defined in Section 
76-3-203.5
; or
(B) a qualifying domestic violence offense as defined in Subsection 
77-36-1.1
(4) that
is not a criminal mischief offense.
(b) The jail facility shall notify the entity supervising the individual's probation or
parole that the individual is being detained.
(c) (i) The jail facility shall release the individual:
(A) to the Department of Corrections if the Department of Corrections supervises the
individual and requests the individual's release; or
(B) if a court or magistrate orders release.
(ii) Nothing in this Subsection (6) prohibits a jail facility from holding the individual in
accordance with Title 77, Chapter 20, Bail, for new criminal conduct.
Section 2. Section 
58-50-9
 is amended to read:
58-50-9.
Standards of conduct for private probation providers -- Contracts --
Reports.
(1)
 The private probation provider:
[
(1)
] 
(a)
 shall maintain impartiality toward all parties;
[
(2)
] 
(b)
 shall ensure that all parties understand the nature of the process, the
procedure, the particular role of the private probation provider, and the parties' relationship to
the private probation provider;
[
(3)
] 
(c)
 shall maintain confidentiality or, in cases where confidentiality is not
protected, the private probation provider shall so advise the parties;
[
(4)
] 
(d)
 shall disclose any circumstance that may create or give the appearance of a
conflict of interest and any circumstance that may reasonably raise a question as to the private
probation provider's impartiality; if the contract probation supervisor perceives or believes a
conflict of interest to exist, the contract probation supervisor shall refrain from entering into
those probation services;
[
(5)
] 
(e)
 shall adhere to the standards regarding private probation services adopted by
the licensing board;
[
(6)
] 
(f)
 shall comply with orders of court and perform services as directed by judges in
individual cases; [
and
]
[
(7)
] 
(g)
 shall perform duties established under Section 
77-18-105
, as ordered by the
court[
.
]
;
(h) beginning July 1, 2022, may not provide private probation in a county where an
agency of local government provides probation services unless the private probation provider
has entered into a contract with the agency of local government; and
(i) shall provide a report each month to each county sheriff where the private probation
provider provides private probation identifying:
(i) each individual currently supervised in the county by the private probation provider;
(ii) the crimes each individual supervised committed;
(iii) the level of supervision that is being provided for each individual; and
(iv) any other information related to the provision of private probation that the county
sheriff determines is relevant.
(2) A contract described in Subsection (1)(h) shall include a description of the fees the
private probation provider will charge a defendant who is supervised by the private probation
provider.
Section 3. Section 
63M-7-404
 is amended to read:
63M-7-404.
Purpose -- Duties.
(1) The purpose of the commission is to develop guidelines and propose
recommendations to the Legislature, the governor, and the Judicial Council regarding:
(a) the sentencing and release of juvenile and adult offenders in order to:
(i) respond to public comment;
(ii) relate sentencing practices and correctional resources;
(iii) increase equity in criminal sentencing;
(iv) better define responsibility in criminal sentencing; and
(v) enhance the discretion of sentencing judges while preserving the role of the Board
of Pardons and Parole and the Youth Parole Authority;
(b) the length of supervision of adult offenders on probation or parole in order to:
(i) increase equity in criminal supervision lengths;
(ii) respond to public comment;
(iii) relate the length of supervision to an offender's progress;
(iv) take into account an offender's risk of offending again;
(v) relate the length of supervision to the amount of time an offender has remained
under supervision in the community; and
(vi) enhance the discretion of the sentencing judges while preserving the role of the
Board of Pardons and Parole;
(c) appropriate, evidence-based probation and parole supervision policies and services
that assist individuals in successfully completing supervision and reduce incarceration rates
from community supervision programs while ensuring public safety, including:
(i) treatment and intervention completion determinations based on individualized case
action plans;
(ii) measured and consistent processes for addressing violations of conditions of
supervision;
(iii) processes that include using positive reinforcement to recognize an individual's
progress in supervision;
(iv) engaging with social services agencies and other stakeholders who provide
services that meet offender needs; and
(v) identifying community violations that may not warrant revocation of probation or
parole.
(2) (a) The commission shall modify the sentencing guidelines and supervision length
guidelines for adult offenders to implement the recommendations of the Commission on
Criminal and Juvenile Justice for reducing recidivism.
(b) The modifications under Subsection (2)(a) shall be for the purposes of protecting
the public and ensuring efficient use of state funds.
(3) (a) The commission shall modify the criminal history score in the sentencing
guidelines for adult offenders to implement the recommendations of the Commission on
Criminal and Juvenile Justice for reducing recidivism.
(b) The modifications to the criminal history score under Subsection (3)(a) shall
include factors in an offender's criminal history that are relevant to the accurate determination
of an individual's risk of offending again.
(4) (a) The commission shall establish sentencing guidelines for periods of
incarceration for individuals who are on probation and:
(i) who have violated one or more conditions of probation; and
(ii) whose probation has been revoked by the court.
(b) [
The guidelines shall consider
] 
For a situation described in Subsection (4)(a), the
guidelines shall recommend that a court consider:
(i)
 the seriousness of [
the
] 
any
 violation of the [
conditions
] 
condition
 of probation[
,
]
;
(ii)
 the probationer's conduct while on probation[
,
]
;
 and
(iii)
 the probationer's criminal history.
(5) (a) The commission shall establish sentencing guidelines for periods of
incarceration for individuals who are on parole and:
(i) who have violated a condition of parole; and
(ii) whose parole has been revoked by the Board of Pardons and Parole.
(b) [
The guidelines shall consider
] 
For a situation described in Subsection (5)(a), the
guidelines shall recommend that the Board of Pardons and Parole consider:
(i)
 the seriousness of [
the
] 
any
 violation of the [
conditions
] 
condition
 of parole[
,
]
;
(ii)
 the individual's conduct while on parole[
,
]
;
 and
(iii)
 the individual's criminal history.
(6) The commission shall establish graduated and evidence-based processes to
facilitate the prompt and effective response to an individual's progress in or violation of the
terms of probation or parole by the adult probation and parole section of the Department of
Corrections, or other supervision services provider, [
in order
] to implement the
recommendations of the Commission on Criminal and Juvenile Justice for reducing recidivism
and incarceration, including:
(a) responses to be used when an individual violates a condition of probation or parole;
(b) responses to recognize positive behavior and progress related to an individual's case
action plan;
(c) when a violation of a condition of probation or parole should be reported to the
court or the Board of Pardons and Parole; and
(d) a range of sanctions that may not exceed a period of incarceration of more than:
(i) three consecutive days; and
(ii) a total of five days in a period of 30 days.
(7) The commission shall establish graduated incentives to facilitate a prompt and
effective response by the adult probation and parole section of the Department of Corrections
to an offender's:
(a) compliance with the terms of probation or parole; and
(b) positive conduct that exceeds those terms.
(8) (a) The commission shall establish guidelines, including sanctions and incentives,
to appropriately respond to negative and positive behavior of juveniles who are:
(i) nonjudicially adjusted;
(ii) placed on diversion;
(iii) placed on probation;
(iv) placed on community supervision;
(v) placed in an out-of-home placement; or
(vi) placed in a secure care facility.
(b) In establishing guidelines under this Subsection (8), the commission shall consider:
(i) the seriousness of the negative and positive behavior;
(ii) the juvenile's conduct post-adjudication; and
(iii) the delinquency history of the juvenile.
(c) The guidelines shall include:
(i) responses that are swift and certain;
(ii) a continuum of community-based options for juveniles living at home;
(iii) responses that target the individual's criminogenic risk and needs; and
(iv) incentives for compliance, including earned discharge credits.
(9) The commission shall establish 
and maintain
 supervision length guidelines in
accordance with this section [
before October 1, 2018
].
Section 4. Section 
64-13-14.7
 is amended to read:
64-13-14.7.
Victim notification of offender's release.
(1) As used in this section:
(a) "Offender" means a person who committed an act of criminally injurious conduct
against the victim and has been sentenced to incarceration in the custody of the department.
(b) "Victim" means a person against whom an offender committed criminally injurious
conduct as defined in Section 
63M-7-502
, and who is entitled to notice of hearings regarding
the offender's parole under Section 
77-27-9.5
. "Victim" includes the legal guardian of a victim,
or the representative of the family of a victim who is deceased.
(2) (a) 
(i)
 [
A
] 
Upon submitting a signed written request of notification to the
Department of Corrections, a
 victim shall be notified of an offender's release under Sections
64-13-14.5
 and 
64-13-14.7
, or any other release to or from a half-way house, to a program
outside of the prison such as a rehabilitation program, state hospital, community center other
than a release on parole, commutation or termination for which notice is provided under
Sections 
77-27-9.5
 and 
77-27-9.7
, transfer of the offender to an out-of-state facility, [
or
] an
offender's escape, [
upon submitting a signed written request of notification to the Department
of Corrections
] 
or an offender's termination from probation or parole
.
(ii)
 The request shall include a current mailing address and may include current
telephone numbers if the victim chooses.
(iii) The notice for an offender's termination from probation or parole shall notify the
victim that the victim may petition the court for the appropriate continuous protective order
under Subsection 
78B-7-804
(5) or 
78B-7-805
(5).
(b) 
(i)
 [
The
] 
Subject to Subsection (3)(b)(ii), the
 department shall advise the victim of
an offender's release or escape under Subsection (2)(a), in writing.
(ii)
 [
However, if
] 
If
 written notice is not feasible because the release is immediate or
the offender escapes, the department shall make a reasonable attempt to notify the victim by
telephone if the victim has provided a telephone number under Subsection (2)(a) and shall
follow up with a written notice.
(3) 
(a)
 Notice of victim rights under this section shall be provided to the victim in the
notice of hearings regarding parole under Section 
77-27-9.5
.
(b)
 The department shall coordinate with the Board of Pardons and Parole to ensure the
notice is implemented.
(4) A victim's request for notification under this section and any notification to a victim
under this section is private information that the department may not release:
(a) to the offender under any circumstances; or
(b) to any other party without the written consent of the victim.
(5) The department may make rules as necessary to implement this section.
(6) The department or its employees acting within the scope of their employment are
not civilly or criminally liable for failure to provide notice or improper notice under this section
unless the failure or impropriety is willful or grossly negligent.
Section 5. Section 
64-13-29
 is amended to read:
64-13-29.
Violation of parole or probation -- Detention -- Hearing.
(1) (a) The department or local law enforcement agency shall ensure that the court is
notified of violations of the terms and conditions of probation in the case of probationers under
the supervision of the department, the local law enforcement agency, or the Board of Pardons
and Parole in the case of parolees under the department's supervision when:
(i) a sanction of incarceration is recommended; [
or
]
(ii) the department or local law enforcement agency determines that a graduated and
evidence-based response is not an appropriate response to the offender's violation and
recommends revocation of probation or parole[
.
]
; or
(iii) there is probable cause that the conduct that led to a violation of parole or
probation is:
(A) a violent felony as defined in Section 
76-3-203.5
; or
(B) a qualifying domestic violence offense as defined in Subsection 
77-36-1.1
(4) that
is not a criminal mischief offense.
(b) In cases where the department desires to detain an offender alleged to have violated
his parole or probation and where it is unlikely that the Board of Pardons and Parole or court
will conduct a hearing within a reasonable time to determine if the offender has violated his
conditions of parole or probation, the department shall hold an administrative hearing within a
reasonable time, unless the hearing is waived by the parolee or probationer, to determine if
there is probable cause to believe that a violation has occurred.
(c) If there is a conviction for a crime based on the same charges as the probation or
parole violation, or a finding by a federal or state court that there is probable cause to believe
that an offender has committed a crime based on the same charges as the probation or parole
violation, the department need not hold an administrative hearing.
(2) The appropriate officer or officers of the department shall, as soon as practical
following the department's administrative hearing, report to the court or the Board of Pardons
and Parole, furnishing a summary of the hearing, and may make recommendations regarding
the disposition to be made of the parolee or probationer.
(3) 
(a)
 Pending any proceeding under this section 
for a violation of probation or parole
,
the department
:
(i) except as provided in Subsection (3)(b),
 may take custody of and detain the parolee
or probationer [
involved
] 
who committed the violation
 for a period not to exceed 72 hours
excluding weekends and holidays[
.
]
; and
(ii) if the department or the department's agent has probable cause that the conduct that
led to the violation is an offense described in Subsection (1)(a)(iii), shall take custody of and
detain the parolee or probationer who committed the violation for a period not to exceed 72
hours excluding weekends and holidays.
(b) The 72-hour period described in this Subsection (3) is reduced by the amount of
time a probationer or parolee is detained under Subsection 
17-22-5.5
(6).
(4) In cases where probationers are supervised by a local law enforcement agency, the
agency may take custody of and detain the probationer involved for a period not to exceed 72
hours excluding weekends and holidays if:
(a) the probationer commits a major violation or repeated violations of probation;
(b) it is unlikely that the court will conduct a hearing within a reasonable time to
determine if the offender has violated the conditions of probation; and
(c) the law enforcement agency conducts an administrative hearing within a reasonable
time to determine if there is probable cause to believe the offender has violated the conditions
of probation, unless the hearing is waived by the probationer.
(5) If the requirements for Subsection (4) are met, the local law enforcement agency
shall ensure the proper court is notified.
(6) If the hearing officer determines that there is probable cause to believe that the
offender has violated the conditions of the offender's parole or probation, the department may
detain the offender for a reasonable period of time after the hearing or waiver, as necessary to
arrange for the incarceration of the offender. A written order of the department is sufficient
authorization for any peace officer to incarcerate the offender. The department may promulgate
rules for the implementation of this section.
(7) A written order from the local law enforcement agency is sufficient authorization
for any peace officer to incarcerate the offender if:
(a) the probationers are supervised by a local law enforcement agency; and
(b) the appropriate officer or officers determine that there is probable cause to believe
that the offender has violated the conditions of probation.
(8) If a probationer supervised by a local law enforcement agency commits a violation
outside of the jurisdiction of the supervising agency, the arresting agency is not required to
hold or transport the probationer for the supervising agency.
Section 6. Section 
77-18-103
 is amended to read:
77-18-103.
Presentence investigation report -- Classification of presentence
investigation report -- Evidence or other information at sentencing.
(1) Before the imposition of a sentence, the court may:
(a) upon agreement of the defendant, continue the date for the imposition of the
sentence for a reasonable period of time for the purpose of obtaining a presentence
investigation report from the department [
or information from other sources
] 
or a law
enforcement agency, or information from any other source
 about the defendant; and
(b) if the defendant is convicted of a felony or a class A misdemeanor, request that the
department 
or a law enforcement agency
 prepare a presentence investigation report for the
defendant.
(2) If a presentence investigation report is required under the standards established by
the department described in Section 
77-18-109
, the presentence investigation report under
Subsection (1) shall include:
(a) any impact statement provided by a victim as described in Subsection
77-38b-203
(3)(c);
(b) information on restitution as described in [
Subsection
] 
Subsections
77-38b-203
(3)(a) and (b);
(c) findings from any screening and any assessment of the defendant conducted under
Section 
77-18-104
;
(d) recommendations for treatment for the defendant; and
(e) the number of days since the commission of the offense that the defendant has spent
in the custody of the jail and the number of days, if any, the defendant was released to a
supervised release program or an alternative incarceration program under Section 
17-22-5.5
.
(3) The department 
or law enforcement agency
 shall provide the presentence
investigation report to the defendant's attorney, or the defendant if the defendant is not
represented by counsel, the prosecuting attorney, and the court for review within three working
days before the day on which the defendant is sentenced.
(4) (a) (i) If there is an alleged inaccuracy in the presentence investigation report that is
not resolved by the parties and the department 
or law enforcement agency
 before sentencing:
(A) the alleged inaccuracy shall be brought to the attention of the court at sentencing;
and
(B) the court may grant an additional 10 working days after the day on which the
alleged inaccuracy is brought to the court's attention to allow the parties and the department to
resolve the alleged inaccuracy in the presentence investigation report.
(ii) If the court does not grant additional time under Subsection (4)(a)(i)(B), or the
alleged inaccuracy cannot be resolved after 10 working days, and if the court finds that there is
an inaccuracy in the presentence investigation report, the court shall:
(A) enter a written finding as to the relevance and accuracy of the challenged portion of
the presentence investigation report; and
(B) provide the written finding to the Division of Adult Probation and Parole 
or the
law enforcement agency
.
(b) The Division of Adult Probation and Parole shall attach the written finding to the
presentence investigation report as an addendum.
(c) If a party fails to challenge the accuracy of the presentence investigation report at
the time of sentencing, the matter shall be considered waived.
(5) The contents of the presentence investigation report are protected and not available
except by court order for purposes of sentencing as provided by rule of the Judicial Council or
for use by the department 
or law enforcement agency
.
(6) (a) A presentence investigation report is classified as protected in accordance with
Title 63G, Chapter 2, Government Records Access and Management Act.
(b) Notwithstanding Sections 
63G-2-403
 and 
63G-2-404
, the State Records Committee
may not order the disclosure of a presentence investigation report.
(7) Except for disclosure at the time of sentencing in accordance with this section, the
department 
or law enforcement agency
 may disclose a presentence investigation only when:
(a) ordered by the court in accordance with Subsection 
63G-2-202
(7);
(b) requested by a law enforcement agency or other agency approved by the department
for purposes of supervision, confinement, and treatment of a defendant;
(c) requested by the board;
(d) requested by the subject of the presentence investigation report or the subject's
authorized representative;
(e) requested by the victim of the offense discussed in the presentence investigation
report, or the victim's authorized representative, if the disclosure is only information relating
to:
(i) statements or materials provided by the victim;
(ii) the circumstances of the offense, including statements by the defendant; or
(iii) the impact of the offense on the victim or the victim's household; or
(f) requested by a sex offender treatment provider:
(i) who is certified to provide treatment under the certification program established in
Subsection 
64-13-25
(3);
(ii) who is providing, at the time of the request, sex offender treatment to the offender
who is the subject of the presentence investigation report; and
(iii) who provides written assurance to the department that the report:
(A) is necessary for the treatment of the defendant;
(B) will be used solely for the treatment of the defendant; and
(C) will not be disclosed to an individual or entity other than the defendant.
(8) (a) At the time of sentence, the court shall receive any testimony, evidence, or
information that the defendant or the prosecuting attorney desires to present concerning the
appropriate sentence.
(b) Testimony, evidence, or information under Subsection (8)(a) shall be presented in
open court on record and in the presence of the defendant.
Section 7. Section 
77-18-105
 is amended to read:
77-18-105.
Pleas held in abeyance -- Suspension of a sentence -- Probation --
Supervision -- Terms and conditions of probation -- Time periods for probation -- Bench
supervision for payments on criminal accounts receivable.
(1) If a defendant enters a plea of guilty or no contest in conjunction with a plea in
abeyance agreement, the court may hold the plea in abeyance:
(a) in accordance with Chapter 2a, Pleas in Abeyance; and
(b) under the terms of the plea in abeyance agreement.
(2) If a defendant is convicted, the court:
(a) shall impose a sentence in accordance with Section 
76-3-201
; and
(b) 
subject to Subsection (5),
 may suspend the execution of the sentence and place the
defendant:
(i) on probation under the supervision of the department[
, except as provided in
Subsection (5)
];
(ii) on probation under the supervision of an agency of a local government or a private
organization; or
(iii) on court probation under the jurisdiction of the sentencing court.
(3) (a) The legal custody of all probationers under the supervision of the department is
with the department.
(b) The legal custody of all probationers under the jurisdiction of the sentencing court
is vested as ordered by the court.
(c) The court has continuing jurisdiction over all probationers.
(4) (a) Court probation may include an administrative level of services, including
notification to the sentencing court of scheduled periodic reviews of the probationer's
compliance with conditions.
(b) Supervised probation services provided by the department, an agency of a local
government, or a private organization shall specifically address the defendant's risk of
reoffending as identified by a screening or an assessment.
[
(5) A court may not order the department to supervise the probation of an individual
who is convicted of a class B or C misdemeanor or an infraction.
]
(5) (a) Before ordering supervised probation, the court shall consider the supervision
costs to the defendant for each entity that can supervise the defendant.
(b) (i) A court may order an agency of a local government to supervise the probation
for an individual convicted of any crime if:
(A) the agency has the capacity to supervise the individual; and
(B) the individual's supervision needs will be met by the agency.
(ii) A court may only order:
(A) the department to supervise the probation for an individual convicted of a class A
misdemeanor or any felony; or
(B) a private organization to supervise the probation for an individual convicted of a
class A, B, or C misdemeanor or an infraction.
(c) A court may not order a specific private organization to supervise an individual
unless there is only one private organization that can provide the specific supervision services
required to meet the individual's supervision needs.
(6) (a) If a defendant is placed on probation, the court may order the defendant as a
condition of the defendant's probation:
(i) to provide for the support of persons for whose support the defendant is legally
liable;
(ii) to participate in available treatment programs, including any treatment program in
which the defendant is currently participating if the program is acceptable to the court;
(iii) be voluntarily admitted to the custody of the Division of Substance Abuse and
Mental Health for treatment at the Utah State Hospital in accordance with Section 
77-18-106
;
(iv) if the defendant is on probation for a felony offense, to serve a period of time as an
initial condition of probation that does not exceed one year in a county jail designated by the
department, after considering any recommendation by the court as to which jail the court finds
most appropriate;
(v) to serve a term of home confinement in accordance with Section 
77-18-107
;
(vi) to participate in compensatory service programs, including the compensatory
service program described in Section 
76-6-107.1
;
(vii) to pay for the costs of investigation, probation, or treatment services;
(viii) to pay a criminal accounts receivable established for the defendant under Section
77-32b-103
; or
(ix) to comply with other terms and conditions the court considers appropriate to
ensure public safety or increase a defendant's likelihood of success on probation.
(b) (i) Notwithstanding Subsection (6)(a)(iv), the court may modify the probation of a
defendant to include a period of time that is served in a county jail immediately before the
termination of probation as long as that period of time does not exceed one year.
(ii) If a defendant is ordered to serve time in a county jail as a sanction for a probation
violation, the one-year limitation described in Subsection (6)(a)(iv) or (6)(b)(i) does not apply
to the period of time that the court orders the defendant to serve in a county jail under this
Subsection (6)(b)(ii).
(7) (a) Except as provided in Subsection (7)(b), probation of an individual placed on
probation after December 31, 2018:
(i) may not exceed the individual's maximum sentence;
(ii) shall be for a period of time that is in accordance with the supervision length
guidelines established by the Utah Sentencing Commission under Section 
63M-7-404
, to the
extent the guidelines are consistent with the requirements of the law; and
(iii) shall be terminated in accordance with the supervision length guidelines
established by the Utah Sentencing Commission under Section 
63M-7-404
, to the extent the
guidelines are consistent with the requirements of the law.
(b) Probation of an individual placed on probation after December 31, 2018, whose
maximum sentence is one year or less, may not exceed 36 months.
(c) Probation of an individual placed on probation on or after October 1, 2015, but
before January 1, 2019, may be terminated at any time at the discretion of the court or upon
completion without violation of 36 months probation in felony or class A misdemeanor cases,
12 months in cases of class B or C misdemeanors or infractions, or as allowed in accordance
with Section 
64-13-21
 regarding earned credits.
(d) This Subsection (7) does not apply to the probation of an individual convicted of an
offense for criminal nonsupport under Section 
76-7-201
.
(8) (a) Notwithstanding Subsection (7), if there is an unpaid balance of the criminal
accounts receivable for the defendant upon termination of the probation period for the
defendant under Subsection (7), the court may require the defendant to continue to make
payments towards the criminal accounts receivable in accordance with the payment schedule
established by the court under Section 
77-32b-103
.
(b) A court may not require the defendant to make payments as described in Subsection
(8)(a) beyond the expiration of the defendant's sentence.
(c) If the court requires a defendant to continue to pay in accordance with the payment
schedule for the criminal accounts receivable under this Subsection (8) and the defendant
defaults on the criminal accounts receivable, the court shall proceed with an order for a civil
judgment of restitution and a civil accounts receivable for the defendant as described in Section
77-18-114
.
(d) (i) Upon a motion from the prosecuting attorney, the victim, or upon the court's
own motion, the court may require a defendant to show cause as to why the defendant's failure
to pay in accordance with the payment schedule should not be treated as contempt of court.
(ii) A court may hold a defendant in contempt for failure to make payments for a
criminal accounts receivable in accordance with Title 78B, Chapter 6, Part 3, Contempt.
(e) This Subsection (8) does not apply to the probation of an individual convicted of an
offense for criminal nonsupport under Section 
76-7-201
.
(9) When making any decision regarding probation, the court shall consider
information provided by the Department of Corrections regarding a defendant's individual case
action plan, including any progress the defendant has made in satisfying the case action plan's
completion requirements.
Section 8. Section 
77-18-108
 is amended to read:
77-18-108.
Termination, revocation, modification, or extension of probation --
Violation of probation -- Hearing on violation.
(1) (a) The department shall notify the court and the prosecuting attorney, in writing:
(i) when the department is requesting termination of supervision for a defendant; or
(ii) before a defendant's supervision will be terminated by law.
(b) The notification under this Subsection (1) shall include a probation progress report.
(c) If a defendant's probation is being terminated, and the defendant's criminal accounts
receivable has an unpaid balance or there is any outstanding debt with the department, the
department shall notify the Office of State Debt Collection that the defendant's criminal
accounts receivable has an unpaid balance or there is an outstanding debt with the department.
(2) (a) The court may modify the defendant's probation in accordance with the
supervision length guidelines and the graduated and evidence-based responses and graduated
incentives developed by the Utah Sentencing Commission under Section 
63M-7-404
.
(b) The court may not:
(i) extend the length of a defendant's probation, except upon:
(A) waiver of a hearing by the defendant; or
(B) a hearing and a finding by the court that the defendant has violated the terms of
probation;
(ii) revoke a defendant's probation, except upon a hearing and a finding by the court
that the terms of probation have been violated; or
(iii) terminate a defendant's probation before expiration of the probation period until
the court enters a finding of whether the defendant owes restitution under Section 
77-38b-205
.
(3) (a) Upon the filing of an affidavit, or an unsworn written declaration executed in
substantial compliance with Title 78B, Chapter 18a, Uniform Unsworn Declarations Act,
alleging with particularity facts asserted to constitute violation of the terms of a defendant's
probation, the court shall determine if the affidavit or unsworn written declaration establishes
probable cause to believe that revocation, modification, or extension of the defendant's
probation is justified.
(b) (i) If the court determines there is probable cause, the court shall order that the
defendant be served with:
(A) a warrant for the defendant's arrest or a copy of the affidavit or unsworn written
declaration; and
(B) an order to show cause as to why the defendant's probation should not be revoked,
modified, or extended.
(ii) The order under Subsection (3)(b)(i)(B) shall:
(A) be served upon the defendant at least five days before the day on which the hearing
is held;
(B) specify the time and place of the hearing; and
(C) inform the defendant of the right to be represented by counsel at the hearing, the
right to have counsel appointed if the defendant is indigent, and the right to present evidence at
the hearing.
(iii) The defendant shall show good cause for a continuance of the hearing.
(c) At the hearing, the defendant shall admit or deny the allegations of the affidavit or
unsworn written declaration.
(d) (i) If the defendant denies the allegations of the affidavit or unsworn written
declaration, the prosecuting attorney shall present evidence on the allegations.
(ii) If the affidavit, or unsworn written declaration, alleges that a defendant is
delinquent, or in default, on a criminal accounts receivable, the prosecuting attorney shall
present evidence to establish, by a preponderance of the evidence, that the defendant:
(A) was aware of the defendant's obligation to pay the balance of the criminal accounts
receivable;
(B) failed to pay on the balance of the criminal accounts receivable as ordered by the
court; and
(C) had the ability to make a payment on the balance of the criminal accounts
receivable if the defendant opposes an order to show cause, in writing, and presents evidence
that the defendant was unable to make a payment on the balance of the criminal accounts
receivable.
(e) The persons who have given adverse information on which the allegations are
based shall be presented as witnesses subject to questioning by the defendant, unless the court
for good cause otherwise orders.
(f) At the hearing, the defendant may:
(i) call witnesses;
(ii) appear and speak in the defendant's own behalf; and
(iii) present evidence.
(g) (i) After the hearing, the court shall make findings of fact.
(ii) Upon a finding that the defendant violated the terms of the defendant's probation,
the court may order the defendant's probation terminated, revoked, modified, continued, or
reinstated for all or a portion of the original term of probation.
(4) (a) (i) Except as provided in Subsection 
77-18-105
(7), the court may not require a
defendant to remain on probation for a period of time that exceeds the length of the defendant's
maximum sentence.
(ii) Except as provided in Subsection 
77-18-105
(7), if a defendant's probation is
revoked and later reinstated, the total time of all periods of probation that the defendant serves,
in relation to the same sentence, may not exceed the defendant's maximum sentence.
[
(b) If a period of incarceration is imposed for a violation of the defendant's probation,
the defendant shall be sentenced within
]
(b) If the court orders a sanction for a defendant who violated terms of probation, the
court may:
(i) order a period of incarceration that is consistent with
 the guidelines established by
the Utah Sentencing Commission in accordance with Subsection 
63M-7-404
(4)[
, unless the
court determines that:
]
;
[
(i) the defendant needs substance abuse or mental health treatment, as determined by a
screening and an assessment, that warrants treatment services that are immediately available in
the community; or
]
(ii) order a period of incarceration that deviates from the guidelines with an
explanation for the deviation on the record;
(iii) order treatment services that are immediately available in the community for a
defendant that needs substance abuse or mental health treatment, as determined by a screening
and assessment;
[
(ii)
] 
(iv) execute
 the sentence previously imposed [
shall be executed.
]
; or
(v) order any other appropriate sanction.
(c) If the defendant had, before the imposition of a term of incarceration or the
execution of the previously imposed sentence under this section, served time in jail as a term of
probation or due to a violation of probation, the time that the defendant served in jail
constitutes service of time toward the sentence previously imposed.
(5) (a) Any time served by a defendant:
(i) outside of confinement after having been charged with a probation violation, and
before a hearing to revoke probation, does not constitute service of time toward the total
probation term, unless the defendant is exonerated at a hearing to revoke the defendant's
probation;
(ii) in confinement awaiting a hearing or a decision concerning revocation of the
defendant's probation does not constitute service of time toward the total probation term, unless
the defendant is exonerated at the hearing to revoke probation; or
(iii) in confinement awaiting a hearing or a decision concerning revocation of the
defendant's probation constitutes service of time toward a term of incarceration imposed as a
result of the revocation of probation or a graduated and evidence-based response imposed
under the guidelines established by the Utah Sentencing Commission in accordance with
Section 
63M-7-404
.
(b) The running of the probation period is tolled upon:
(i) the filing of a report with the court alleging a violation of the terms of the
defendant's probation; or
(ii) the issuance of an order or a warrant under Subsection (3).
Section 9. Section 
77-27-11
 is amended to read:
77-27-11.
Revocation of parole.
(1) The board may revoke the parole of any individual who is found to have violated
any condition of the individual's parole.
(2) (a) If a parolee is confined by the department or any law enforcement official for a
suspected violation of parole, the department:
(i) shall immediately report the alleged violation to the board, by means of an incident
report; and
(ii) make any recommendation regarding the incident.
(b) A parolee may not be held for a period longer than 72 hours, excluding weekends
and holidays, without first obtaining a warrant.
(3) Any member of the board may:
(a) issue a warrant based upon a certified warrant request to a peace officer or other
persons authorized to arrest, detain, and return to actual custody a parolee; and
(b) upon arrest of the parolee, determine, or direct the department to determine, if there
is probable cause to believe that the parolee has violated the conditions of the parolee's parole.
(4) Upon a finding of probable cause, a parolee may be further detained or imprisoned
again pending a hearing by the board or the board's appointed examiner.
(5) (a) The board or the board's appointed examiner shall conduct a hearing on the
alleged violation, and the parolee shall have written notice of the time and location of the
hearing, the alleged violation of parole, and a statement of the evidence against the parolee.
(b) The board or the board's appointed examiner shall provide the parolee the
opportunity:
(i) to be present;
(ii) to be heard;
(iii) to present witnesses and documentary evidence;
(iv) to confront and cross-examine adverse witnesses, absent a showing of good cause
for not allowing the confrontation; and
(v) to be represented by counsel when the parolee is mentally incompetent or pleading
not guilty.
(c) (i) If heard by an appointed examiner, the examiner shall make a written decision
which shall include a statement of the facts relied upon by the examiner in determining the
guilt or innocence of the parolee on the alleged violation and a conclusion as to whether the
alleged violation occurred.
(ii) The appointed examiner shall then refer the case to the board for disposition.
(d) (i) A final decision shall be reached by a majority vote of the sitting members of the
board.
(ii) A parolee shall be promptly notified in writing of the board's findings and decision.
(6) (a) If a parolee is found to have violated the terms of parole, the board, at the
board's discretion, may:
(i) return the parolee to parole;
(ii) modify the payment schedule for the parolee's criminal accounts receivable in
accordance with Section 
77-32b-105
;
(iii) order the parolee to pay pecuniary damages that are proximately caused by a
defendant's violation of the terms of the defendant's parole;
(iv) order the parolee to be imprisoned, but not to exceed the maximum term of
imprisonment for the parolee's sentence; or
(v) order any other conditions for the parolee.
(b) If the board returns the parolee to parole, the length of parole may not be for a
period of time that exceeds the length of the parolee's maximum sentence.
(c) If the board revokes parole for a violation and orders incarceration, the board [
shall
impose a period of incarceration
] 
may impose a period of incarceration:
(i)
 consistent with the guidelines under Subsection 
63M-7-404
(5)[
.
]
; or
(ii) subject to Subsection (6)(a)(iv), impose a period of incarceration that differs from
the guidelines.
(d) The following periods of time constitute service of time toward the period of
incarceration imposed under Subsection (6)(c):
(i) time served in jail by a parolee awaiting a hearing or decision concerning revocation
of parole; and
(ii) time served in jail by a parolee due to a violation of parole under Subsection
64-13-6
(2).