Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 321 Third Substitute (2022GS)

Sponsor

Rep. Abbott, N.

Final action

Governor Signed 3/24/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• amends provisions regarding the payment of restitution as a condition of probation;
• clarifies the sentencing court's jurisdiction over a defendant's case in regards to the remittance of a criminal accounts receivable;
• amends provisions related to the payment of a criminal accounts receivable by electronic payment;
• defines terms related to criminal restitution;
• clarifies and addresses the preclusive effect of a conviction in a subsequent civil action; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

RESTITUTION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Nelson T. Abbott
Senate Sponsor: 
Keith Grover
LONG TITLE
General Description:
This bill amends provisions related to restitution.
Highlighted Provisions:
This bill:
▸ amends provisions regarding the payment of restitution as a condition of probation;
▸ clarifies the sentencing court's jurisdiction over a defendant's case in regards to the
remittance of a criminal accounts receivable;
▸ amends provisions related to the payment of a criminal accounts receivable by
electronic payment;
▸ defines terms related to criminal restitution;
▸ clarifies and addresses the preclusive effect of a conviction in a subsequent civil
action; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
77-18-105
, as enacted by Laws of Utah 2021, Chapter 260 and last amended by
Coordination Clause, Laws of Utah 2021, Chapter 246
77-18-114
, as enacted by Laws of Utah 2021, Chapter 260
77-18-118
, as enacted by Laws of Utah 2021, Chapter 260
77-32b-103
, as enacted by Laws of Utah 2021, Chapter 260
77-38b-102
, as last amended by Laws of Utah 2021, Chapter 262
77-38b-303
, as enacted by Laws of Utah 2021, Chapter 260
Be it enacted by the Legislature of the state of Utah:
Section 1. 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) 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.
(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
]
(viii) to pay restitution to a victim with interest in accordance with Chapter 38b, Crime
Victims Restitution Act; 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 2. Section 
77-18-114
 is amended to read:
77-18-114.
Unpaid balance at termination of sentence -- Past due account --
Notice -- Account or judgment paid in full -- Effect of civil accounts receivable and civil
judgment of restitution.
(1) When a defendant's sentence is terminated by law or by the decision of the court or
the board:
(a) the board shall provide an accounting of the unpaid balance of the defendant's
criminal accounts receivable to the court if the defendant was on parole or incarcerated at the
time of termination; and
(b) 
except as provided in Subsection 
77-18-118
(1)(g),
 within 90 days after the day on
which a defendant's sentence is terminated, the court shall:
(i) enter an order for a civil accounts receivable and a civil judgment of restitution for a
defendant on the civil judgment docket;
(ii) transfer the responsibility of collecting the civil accounts receivable and the civil
judgment of restitution to the Office of State Debt Collection; and
(iii) identify in the order under this Subsection (1):
(A) the Office of State Debt Collection as a judgment creditor for the civil accounts
receivable and the civil judgment of restitution; and
(B) the victim as a judgment creditor for the civil judgment of restitution.
(2) If a criminal accounts receivable for the defendant is more than 90 days past due
and the court has ordered that a defendant does not owe restitution to any victim, or the time
period in Subsection 
77-38b-205
(5) has passed and the court has not ordered restitution, the
court may:
(a) enter an order for a civil accounts receivable for the defendant on the civil judgment
docket;
(b) identify, in the order under Subsection (2)(a), the Office of State Debt Collection as
a judgment creditor for the civil accounts receivable; and
(c) transfer the responsibility of collecting the civil accounts receivable to the Office of
State Debt Collection.
(3) An order for a criminal accounts receivable is no longer in effect after the court
enters an order for a civil accounts receivable or a civil judgment of restitution under
Subsection (1) or (2).
(4) The court shall provide notice to the Office of State Debt Collection and the
prosecuting attorney of any hearing that affects an order for the civil accounts receivable or the
civil judgment of restitution.
(5) The Office of State Debt Collection shall:
(a) notify the court when a civil judgment of restitution or a civil accounts receivable is
satisfied; and
(b) provide the court with an accounting of any distribution made by the Office of State
Debt Collection for the civil accounts receivable and the civil judgment of restitution.
(6) When a fine, forfeiture, surcharge, cost, or fee is recorded in an order for a civil
accounts receivable on the civil judgment docket, or when restitution is recorded as an order
for a civil judgment of restitution on the civil judgment docket, the order:
(a) constitutes a lien on the defendant's real property until the judgment is satisfied; and
(b) may be collected by any means authorized by law for the collection of a civil
judgment.
(7) A criminal accounts receivable, a civil accounts receivable, and a civil judgment of
restitution are not subject to the civil statutes of limitation and expire only upon payment in
full.
(8) (a) If a defendant asserts that a payment was made to a victim or third party for a
civil judgment of restitution, or enters into any other transaction that does not involve the
Office of State Debt Collection, and the defendant asserts that the payment results in a credit
towards the civil judgment of restitution for the defendant:
(i) the defendant shall provide notice to the Office of State Debt Collection and the
prosecuting attorney within 30 days after the day on which the payment or other transaction is
made; and
(ii) the payment may only be credited towards the principal of the civil judgment of
restitution and does not affect any other amount owed to the Office of State Debt Collection
under Section 
63A-3-502
.
(b) Nothing in this Subsection (8) shall be construed to prevent a victim or a third party
from providing notice of a payment towards a civil judgment of restitution to the Office of
State Debt Collection.
Section 3. Section 
77-18-118
 is amended to read:
77-18-118.
Continuing jurisdiction of a sentencing court.
(1) A sentencing court shall retain jurisdiction over a defendant's criminal case:
(a) if the defendant is on probation as described in Subsection 
77-18-105
(3)(c);
(b) if the defendant is on probation and the probation period has terminated under
Subsection 
77-18-105
(7), to require the defendant to continue to make payments towards a
criminal accounts receivable until the defendant's sentence expires;
(c) within the time periods described in Subsection 
77-38b-205
(5), to enter or modify
an order for a criminal accounts receivable in accordance with Section 
77-32b-103
;
(d) within the time periods described in Subsection 
77-38b-205
(5), to enter or modify
an order for restitution in accordance with Section 
77-38b-205
;
(e) until a defendant's sentence is terminated, to correct an error for a criminal accounts
receivable in accordance with Subsection 
77-32b-105
(1)(a);
(f) until a defendant's sentence is terminated, to modify a payment schedule for a
criminal accounts receivable in accordance with Subsection 
77-32b-105
(1)(b);
[
(g) if a defendant files a petition for remittance under Subsection 
77-32b-105
(1)(c)
before the defendant's sentence is terminated, for 90 days from the day on which the petition is
filed to determine whether to remit, in whole or in part, the defendant's criminal accounts
receivable;
]
[
(h)
] 
(g)
 if a defendant files a petition for remittance under Subsection 
77-32b-106
(1)
within 90 days from the day on which the defendant's sentence is terminated, to determine
whether to remit, in whole or in part, the defendant's criminal accounts receivable; and
[
(i)
] 
(h)
 to enter an order for a civil accounts receivable and a civil judgment of
restitution in accordance with Section 
77-18-114
.
(2) This section does not prevent a court from exercising jurisdiction over:
(a) a contempt proceeding for a defendant under Title 78B, Chapter 6, Part 3,
Contempt; or
(b) enforcement of a civil accounts receivable or a civil judgment of restitution.
Section 4. Section 
77-32b-103
 is amended to read:
77-32b-103.
Establishment of a criminal accounts receivable -- Responsibility --
Payment schedule -- Delinquency or default.
(1) (a) Except as provided in Subsection (1)(b) and (c), at the time of sentencing or
acceptance of a plea in abeyance, the court shall enter an order to establish a criminal accounts
receivable for the defendant.
(b) The court is not required to create a criminal accounts receivable for the defendant
under Subsection (1) if the court finds that the defendant does not owe restitution and there are
no other fines or fees to be assessed against the defendant.
(c) Subject to Subsection 
77-38b-205
(5), if the court does not create a criminal
accounts receivable for a defendant under Subsection (1), the court shall enter an order to
establish a criminal accounts receivable for the defendant at the time the court enters an order
for restitution under Section 
77-38b-205
.
(2) After establishing a criminal accounts receivable for a defendant, the court shall:
(a) if a prison sentence is imposed and not suspended for the defendant:
(i) accept any payment for the criminal accounts receivable that is tendered on the date
of sentencing; and
(ii) transfer the responsibility of receiving, distributing, and processing payments for
the criminal accounts receivable to the Office of State Debt Collection; and
(b) for all other cases:
(i) retain the responsibility for receiving, processing, and distributing payments for the
criminal accounts receivable until the court enters a civil accounts receivable or civil judgment
of restitution on the civil judgment docket under Subsection 
77-18-114
(1) or (2); and
(ii) record each payment by the defendant on the case docket.
(c) For a criminal accounts receivable that a court retains responsibility for receiving,
processing, and distributing payments under Subsection (2)(b)(i), the Judicial Council may
establish rules to require a defendant to pay the cost, or a portion of the cost, 
for an electronic
payment fee
 that is charged by a financial institution for the use of a credit or debit card [
by the
defendant
] to make payments towards the criminal accounts receivable.
(3) (a) Upon entering an order for a criminal accounts receivable, the court shall
establish a payment schedule for the defendant to make payments towards the criminal
accounts receivable.
(b) In establishing the payment schedule for the defendant, the court shall consider:
(i) the needs of the victim if the criminal accounts receivable includes an order for
restitution under Section 
77-38b-205
;
(ii) the financial resources of the defendant, as disclosed in the financial declaration
under Section 
77-38b-204
;
(iii) the burden that the payment schedule will impose on the defendant regarding the
other reasonable obligations of the defendant;
(iv) the ability of the defendant to pay restitution on an installment basis or on other
conditions fixed by the court;
(v) the rehabilitative effect on the defendant of the payment of restitution and method
of payment; and
(vi) any other circumstance that the court determines is relevant.
(4) A payment schedule for a criminal accounts receivable does not limit the ability of
a judgment creditor to pursue collection by any means allowable by law.
(5) If the court orders restitution under Section 
77-38b-205
, or makes another financial
decision, after sentencing that increases the total amount owed in a defendant's case, the
defendant's criminal accounts receivable balance shall be adjusted to include any new amount
ordered by the court.
(6) (a) If a defendant is incarcerated in a county jail or a secure correctional facility, as
defined in Section 
64-13-1
, or the defendant is involuntarily committed under Section
62A-15-631
:
(i) all payments for a payment schedule shall be suspended for the period of time that
the defendant is incarcerated or involuntarily committed, unless the court, or the board if the
defendant is under the jurisdiction of the board, expressly orders the defendant to make
payments according to the payment schedule; and
(ii) the defendant shall provide the court with notice of the incarceration or involuntary
commitment.
(b) A suspension under Subsection (6)(a) shall remain in place for 60 days after the day
in which the defendant is released from incarceration or commitment.
Section 5. Section 
77-38b-102
 is amended to read:
77-38b-102.
Definitions.
As used in this chapter:
(1) "Civil accounts receivable" means the same as that term is defined in Section
77-32b-102
.
(2) "Civil judgment of restitution" means the same as that term is defined in Section
77-32b-102
.
[
(1)
] 
(3)
 (a) "Conviction" means:
(i) a plea of:
(A) guilty;
(B) guilty with a mental illness; or
(C) no contest; or
(ii) a judgment of:
(A) guilty; or
(B) guilty with a mental illness.
(b) "Conviction" does not include:
(i) a plea in abeyance until a conviction is entered for the plea in abeyance;
(ii) a diversion agreement; or
(iii) an adjudication of a minor for an offense under Section 
80-6-701
.
(4) "Criminal accounts receivable" means the same as that term is defined in Section
77-32b-102
.
[
(2)
] 
(5)
 "Criminal conduct" means:
(a) any misdemeanor or felony offense of which the defendant is convicted; or
(b) any other criminal behavior for which the defendant admits responsibility to the
sentencing court with or without an admission of committing the criminal behavior.
[
(3)
] 
(6)
 (a) "Defendant" means an individual who has been convicted of, or entered
into a plea disposition for, criminal conduct.
(b) "Defendant" does not include a minor, as defined in Section 
80-1-102
, who is
adjudicated, or enters into a nonjudicial adjustment, for any offense under Title 80, Chapter 6,
Juvenile Justice.
[
(4)
] 
(7)
 "Department" means the Department of Corrections.
[
(5)
] 
(8)
 "Diversion agreement" means an agreement entered into by the prosecuting
attorney and the defendant that suspends criminal proceedings before conviction on the
condition that a defendant agree to participate in a rehabilitation program, pay restitution to the
victim, or fulfill some other condition.
[
(6)
] 
(9)
 "Office" means the Office of State Debt Collection created in Section
63A-3-502
.
[
(7)
] 
(10)
 "Party" means the prosecuting attorney, the defendant, or the department
involved in a prosecution.
[
(8)
] 
(11)
 "Payment schedule" means the same as that term is defined in Section
77-32b-102
.
[
(9)
] 
(12)
 (a) "Pecuniary damages" means all demonstrable economic injury, losses,
and expenses regardless of whether the economic injury, losses, and expenses have yet been
incurred.
(b) "Pecuniary damages" does not include punitive damages or pain and suffering
damages.
[
(10)
] 
(13)
 "Plea agreement" means an agreement entered between the prosecuting
attorney and the defendant setting forth the special terms and conditions and criminal charges
upon which the defendant will enter a plea of guilty or no contest.
[
(11)
] 
(14)
 "Plea disposition" means an agreement entered into between the
prosecuting attorney and the defendant including a diversion agreement, a plea agreement, a
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.
[
(12)
] 
(15)
 "Plea in abeyance" means an order by a court, upon motion of the
prosecuting attorney 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 the defendant nor
imposing sentence upon the defendant on condition that the defendant comply with specific
conditions as set forth in a plea in abeyance agreement.
[
(13)
] 
(16)
 "Plea in abeyance agreement" means an agreement entered into between the
prosecuting attorney 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.
[
(14)
] 
(17)
 "Restitution" means the payment of pecuniary damages to a victim.
[
(15)
] 
(18)
 (a) "Victim" means any person who has suffered pecuniary damages that are
proximately caused by the criminal conduct of the defendant.
(b) "Victim" includes:
(i) the Utah Office for Victims of Crime if the Utah Office for Victims of Crime makes
a payment to a victim under Section 
63M-7-519
;
(ii) the estate of a deceased victim; and
(iii) a parent, spouse, or sibling of a victim.
(c) "Victim" does not include a codefendant or accomplice.
Section 6. Section 
77-38b-303
 is amended to read:
77-38b-303.
Civil action by a victim.
(1) [
(a)
] A provision under this part concerning restitution does not limit or impair the
right of a person injured by a defendant's criminal conduct to sue and recover damages from the
defendant in a civil action.
[
(b)
] 
(2) (a)
 A court's finding 
on the amount of restitution owed by a defendant
 under
Subsection 
77-38b-205
(1)(a)(iii) may be used in a civil action [
for a
] 
pertaining to the
defendant's liability to a victim as presumptive proof of the victim's pecuniary damages that are
proximately caused by the defendant's criminal conduct.
[
(c)
] 
(b)
 If a conviction in a criminal trial decides the issue of a defendant's liability for
pecuniary damages suffered by a victim, the issue of the defendant's liability 
for pecuniary
damages
 is conclusively determined as to the defendant if the issue is involved in a subsequent
civil action.
(c) (i) Except as provided in Subsection (2)(c)(ii), if a defendant is convicted of a
misdemeanor or felony offense, the defendant is precluded from subsequently denying the
essential allegations of the offense in a subsequent civil action brought against the defendant
for the criminal conduct underlying the offense.
(ii) Subsection (2)(c)(i) does not apply if the offense is a class C misdemeanor under
Title 41, Chapter 6a, Traffic Code, or the defendant entered a plea of no contest for the offense.
[
(2)
] 
(3)
 (a) The sentencing court shall credit any payment in favor of the victim in a
civil action for the defendant's criminal conduct toward the amount of restitution owed by the
defendant to the victim.
(b) In a civil action, a court shall credit any restitution paid by the defendant to a victim
for the defendant's criminal conduct towards the victim against any judgment that is in favor of
the victim for the civil action.
(c) If a victim receives payment from the defendant for the civil action, the victim shall
provide notice to the sentencing court and the court in the civil action of the payment within 30
days after the day on which the victim receives the payment.
(d) Nothing in this section shall prevent a defendant from providing proof of payment
to the court or the office.
[
(3)
] 
(4)
 (a) If a victim prevails in a civil action against a defendant, the court shall
award reasonable attorney fees and costs to the victim.
(b) If the defendant prevails in the civil action, the court shall award reasonable costs to
the defendant if the court finds that the victim brought the civil action for an improper purpose,
including to harass the defendant or to cause unnecessary delay or needless increase in the cost
of litigation.