Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 385 Third Substitute (2023GS)

Sponsor

Rep. Abbott, N.

Final action

Governor Signed 3/14/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines and modifies terms;
• modifies when certain defendants are eligible for a criminal defense based on a mental condition;
• modifies when certain defendants may receive probation, supervised release, or a reduction to a lower category of offense under specified circumstances;
• changes "guilty with a mental illness" to "guilty with a mental condition";
• amends eligibility, procedures, and requirements concerning a plea of guilty with a mental condition;
• amends certain provisions concerning the sentencing and commitment of an offender with a mental condition; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

MENTALLY ILL OFFENDERS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Nelson T. Abbott
Senate Sponsor: 
Todd D. Weiler
LONG TITLE
General Description:
This bill concerns offenders with a mental condition.
Highlighted Provisions:
This bill:
▸ defines and modifies terms;
▸ modifies when certain defendants are eligible for a criminal defense based on a
mental condition;
▸ modifies when certain defendants may receive probation, supervised release, or a
reduction to a lower category of offense under specified circumstances;
▸ changes "guilty with a mental illness" to "guilty with a mental condition";
▸ amends eligibility, procedures, and requirements concerning a plea of guilty with a
mental condition;
▸ amends certain provisions concerning the sentencing and commitment of an
offender with a mental condition; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides revisor instructions.
Utah Code Sections Affected:
AMENDS:
53-10-208.1
, as last amended by Laws of Utah 2021, Chapter 159
53-10-403.5
, as last amended by Laws of Utah 2020, Chapter 415
62A-15-610
, as last amended by Laws of Utah 2011, Chapter 366
62A-15-623
, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
Chapter 8
62A-15-902
, as last amended by Laws of Utah 2011, Chapter 366
76-2-305
, as last amended by Laws of Utah 2016, Chapter 115
76-3-201
, as repealed and reenacted by Laws of Utah 2021, Chapter 260 and last
amended by Coordination Clause, Laws of Utah 2021, Chapter 261
76-3-406
, as last amended by Laws of Utah 2022, Chapter 181
76-5-205.5
, as last amended by Laws of Utah 2022, Chapter 181
76-5-303.5
, as last amended by Laws of Utah 2022, Chapter 181
76-10-1311
, as last amended by Laws of Utah 2008, Chapter 382
77-13-1
, as last amended by Laws of Utah 2011, Chapter 366
77-16a-101
, as last amended by Laws of Utah 2011, Chapter 366
77-16a-102
, as last amended by Laws of Utah 2019, Chapter 312
77-16a-104
, as last amended by Laws of Utah 2011, Chapter 366
77-16a-201
, as last amended by Laws of Utah 2018, Chapter 334
77-16a-202
, as last amended by Laws of Utah 2011, Chapter 366
77-16a-203
, as last amended by Laws of Utah 2011, Chapter 366
77-16a-204
, as last amended by Laws of Utah 2011, Chapter 366
77-16a-205
, as last amended by Laws of Utah 2018, Chapter 334
77-16a-301
, as last amended by Laws of Utah 2019, Chapter 312
77-16a-302
, as last amended by Laws of Utah 2011, Chapter 366
77-16a-304
, as last amended by Laws of Utah 2011, Chapter 366
77-16a-305
, as last amended by Laws of Utah 1993, Chapter 285
77-16a-306
, as last amended by Laws of Utah 2011, Chapter 366
77-27-2
, as last amended by Laws of Utah 2021, Chapter 260
77-27-5.3
, as last amended by Laws of Utah 2011, Chapter 366
77-27-10.5
, as last amended by Laws of Utah 2011, Chapter 366
77-36-1.1
, as last amended by Laws of Utah 2021, Chapter 213
77-38-302
, as last amended by Laws of Utah 2020, Chapter 230
77-38b-102
, as last amended by Laws of Utah 2022, Chapter 359
78A-2-302
, as last amended by Laws of Utah 2022, Chapter 272
78B-7-901
, as enacted by Laws of Utah 2020, Chapter 142
80-2-1004
, as renumbered and amended by Laws of Utah 2022, Chapter 334
REPEALS AND REENACTS:
77-16a-103
, as last amended by Laws of Utah 2011, Chapter 366
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
53-10-208.1
 is amended to read:
53-10-208.1.
Magistrates and court clerks to supply information.
(1) Every magistrate or clerk of a court responsible for court records in this state shall,
within 30 days of the disposition and on forms and in the manner provided by the division,
furnish the division with information pertaining to:
(a) all dispositions of criminal matters, including:
(i) guilty pleas;
(ii) convictions;
(iii) dismissals;
(iv) acquittals;
(v) pleas held in abeyance;
(vi) judgments of not guilty by reason of insanity;
(vii) judgments of guilty with a mental [
illness
] 
condition
;
(viii) finding of mental incompetence to stand trial; and
(ix) probations granted;
(b) orders of civil commitment under the terms of Section 
62A-15-631
;
(c) the issuance, recall, cancellation, or modification of all warrants of arrest or
commitment as described in Rule 6, Utah Rules of Criminal Procedure and Section 
78B-6-303
,
within one day of the action and in a manner provided by the division; and
(d) protective orders issued after notice and hearing, pursuant to:
(i) Title 77, Chapter 36, Cohabitant Abuse Procedures Act;
(ii) Title 78B, Chapter 7, Part 4, Dating Violence Protective Orders;
(iii) Title 78B, Chapter 7, Part 5, Sexual Violence Protective Orders;
(iv) Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders; or
(v) Title 78B, Chapter 7, Part 8, Criminal Protective Orders.
(2) The court in the county where a determination or finding was made shall transmit a
record of the determination or finding to the bureau no later than 48 hours after the
determination is made, excluding Saturdays, Sundays, and legal holidays, if an individual is:
(a) adjudicated as a mental defective; or
(b) involuntarily committed to a mental institution in accordance with Subsection
62A-15-631
(16).
(3) The record described in Subsection (2) shall include:
(a) an agency record identifier;
(b) the individual's name, sex, race, and date of birth; and
(c) the individual's social security number, government issued driver license or
identification number, alien registration number, government passport number, state
identification number, or FBI number.
Section 2. Section 
53-10-403.5
 is amended to read:
53-10-403.5.
Definitions.
As used in Sections 
53-10-403
, 
53-10-404
, 
53-10-404.5
, 
53-10-405
, and 
53-10-406
:
(1) "Bureau" means the Bureau of Forensic Services.
(2) "Combined DNA Index System" or "CODIS" means the program operated by the
Federal Bureau of Investigation to support criminal justice DNA databases and the software
used to run the databases.
(3) "Conviction" means:
(a) a verdict or conviction;
(b) a plea of guilty or guilty [
and mentally ill
] 
with a mental condition
;
(c) a plea of no contest; or
(d) the acceptance by the court of a plea in abeyance.
(4) "DNA" means deoxyribonucleic acid.
(5) "DNA specimen" or "specimen" means a biological sample of a person's saliva or
blood, a biological sample from a crime scene, or a sample collected as part of an investigation.
(6) "Final judgment" means a judgment, including any supporting opinion, concerning
which all appellate remedies have been exhausted or the time for appeal has expired.
(7) "Rapid DNA" means the fully automated process of developing a DNA profile.
(8) "Violent felony" means any offense under Section 
76-3-203.5
.
Section 3. Section 
62A-15-610
 is amended to read:
62A-15-610.
Objectives of state hospital and other facilities -- Persons who may
be admitted to state hospital.
(1) The objectives of the state hospital and other mental health facilities shall be to care
for all persons within this state who are subject to the provisions of this chapter; and to furnish
them with the proper attendance, medical treatment, seclusion, rest, restraint, amusement,
occupation, and support that is conducive to their physical and mental well-being.
(2) Only the following persons may be admitted to the state hospital:
(a) persons 18 years [
of age
] 
old
 and older who meet the criteria necessary for
commitment under this part and who have severe mental disorders for whom no appropriate,
less restrictive treatment alternative is available;
(b) persons under 18 years [
of age
] 
old
 who meet the criteria necessary for commitment
under Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and
Mental Health, and for whom no less restrictive alternative is available;
(c) persons adjudicated and found to be guilty with a mental [
illness under Title 77,
Chapter 16a, Commitment and Treatment of Persons with a Mental Illness
] 
condition under
Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition
;
(d) persons adjudicated and found to be not guilty by reason of insanity who are under
a subsequent commitment order because they have a mental illness and are a danger to
themselves or others, under Section 
77-16a-302
;
(e) persons found incompetent to proceed under Section 
77-15-6
;
(f) persons who require an examination under Title 77, Utah Code of Criminal
Procedure; and
(g) persons in the custody of the Department of Corrections, admitted in accordance
with Section 
62A-15-605.5
, giving priority to those persons with severe mental disorders.
Section 4. Section 
62A-15-623
 is amended to read:
62A-15-623.
Criminal's escape -- Penalty.
Any person committed to the state hospital under the provisions of Title 77, Chapter 15,
Inquiry into Sanity of Defendant, or [
Chapter 16a, Commitment and Treatment of Persons with
a Mental Illness
] 
Chapter 16a, Commitment and Treatment of Individuals with a Mental
Condition
, who escapes or leaves the state hospital without proper legal authority is guilty of a
class A misdemeanor.
Section 5. Section 
62A-15-902
 is amended to read:
62A-15-902.
Design and operation -- Security.
(1) The forensic mental health facility is a secure treatment facility.
(2) (a) The forensic mental health facility accommodates the following populations:
(i) prison inmates displaying mental illness, as defined in Section 
62A-15-602
,
necessitating treatment in a secure mental health facility;
(ii) criminally adjudicated persons found guilty with a mental [
illness
] 
condition
 or
guilty with a mental [
illness
] 
condition
 at the time of the offense undergoing evaluation for 
a
mental [
illness under Title 77, Chapter 16a, Commitment and Treatment of Persons with a
Mental Illness
] 
condition under Title 77, Chapter 16a, Commitment and Treatment of
Individuals with a Mental Condition
;
(iii) criminally adjudicated persons undergoing evaluation for competency or found
guilty with a mental [
illness
] 
condition
 or guilty with a mental [
illness
] 
condition
 at the time of
the offense under [
Title 77, Chapter 16a, Commitment and Treatment of Persons with a Mental
Illness
] 
Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental
Condition
, who also have an intellectual disability;
(iv) persons undergoing evaluation for competency or found by a court to be
incompetent to proceed in accordance with Title 77, Chapter 15, Inquiry into Sanity of
Defendant, or not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
(v) persons who are civilly committed to the custody of a local mental health authority
in accordance with Title 62A, Chapter 15, Part 6, Utah State Hospital and Other Mental Health
Facilities, and who may not be properly supervised by the Utah State Hospital because of a lack
of necessary security, as determined by the superintendent or the superintendent's designee; and
(vi) persons ordered to commit themselves to the custody of the Division of Substance
Abuse and Mental Health for treatment at the Utah State Hospital as a condition of probation or
stay of sentence pursuant to Title 77, Chapter 18, The Judgment.
(b) Placement of an offender in the forensic mental health facility under any category
described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the offender's
status as established by the court at the time of adjudication.
(c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
department shall make rules providing for the allocation of beds to the categories described in
Subsection (2)(a).
(3) The department shall:
(a) own and operate the forensic mental health facility;
(b) provide and supervise administrative and clinical staff; and
(c) provide security staff who are trained as psychiatric technicians.
(4) Pursuant to Subsection 
62A-15-603
(3) the executive director shall designate
individuals to perform security functions for the state hospital.
Section 6. Section 
76-2-305
 is amended to read:
76-2-305.
Mental condition -- Use as a defense -- Influence of alcohol or other
substance voluntarily consumed.
(1) As used in this section:
(a) (i) "Mental condition" means a mental illness or a mental disability that
substantially impairs an individual's mental, emotional, or behavioral functioning.
(ii) "Mental condition" does not include a mental abnormality that is manifested solely
by repeated criminal conduct, anti-social behavior, or a substance use disorder.
(b) "Mental disability" means an intellectual disability or a neurodevelopmental
disorder as those terms are defined in the current edition of the Diagnostic and Statistical
Manual of Mental Disorders published by the American Psychiatric Association.
(c) "Mental illness" means the following mental disorders as described in the most
recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
American Psychiatric Association:
(i) schizophrenia spectrum and other psychotic disorders; or
(ii) other serious mental health conditions with psychotic features.
[
(1)
] 
(2)
 (a) It is a defense to a prosecution under any statute or ordinance that the
defendant, as a result of 
a
 mental [
illness
] 
condition
, lacked the mental state required as an
element of the offense charged.
(b) [
Mental illness
] 
A mental condition
 is not otherwise a defense, but may be evidence
in mitigation of the penalty in a capital felony under Section 
76-3-207
 and may be evidence of
special mitigation reducing the level of a criminal homicide or attempted criminal homicide
offense under Section 
76-5-205.5
.
[
(2)
] 
(3)
 The defense defined in this section includes the defenses known as "insanity"
and "diminished mental capacity."
[
(3)
] 
(4)
 A person who asserts a defense of insanity or diminished mental capacity, and
who is under the influence of voluntarily consumed, injected, or ingested alcohol, controlled
substances, or volatile substances at the time of the alleged offense is not excused from
criminal responsibility on the basis of 
a
 mental [
illness
] 
condition
 if the alcohol or substance
caused, triggered, or substantially contributed to the mental [
illness
] 
condition
.
[
(4) As used in this section:
]
[
(a) "Intellectual disability" means a significant subaverage general intellectual
functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to
age 22.
]
[
(b) (i) "Mental illness" means a mental disease or defect that substantially impairs a
person's mental, emotional, or behavioral functioning. A mental defect may be a congenital
condition, the result of injury, or a residual effect of a physical or mental disease and includes,
but is not limited to, intellectual disability.
]
[
(ii) "Mental illness" does not mean an abnormality manifested primarily by repeated
criminal conduct.
]
Section 7. Section 
76-3-201
 is amended to read:
76-3-201.
Sentences or combination of sentences allowed -- Restitution and other
costs -- Civil penalties.
(1) As used in this section:
(a) (i) "Convicted" means:
(A) having entered a plea of guilty, a plea of no contest, or a plea of guilty with a
mental [
illness
] 
condition
; or
(B) having received a judgment of guilty or a judgment of guilty with a mental [
illness
]
condition
.
(ii) "Convicted" does not include an adjudication of an offense under Section 
80-6-701
.
(b) "Restitution" means the same as that term is defined in Section 
77-38b-102
.
(2) Within the limits provided by this chapter, a court may sentence an individual
convicted of an offense to any one of the following sentences, or combination of the following
sentences:
(a) to pay a fine;
(b) to removal or disqualification from public or private office;
(c) except as otherwise provided by law, to probation in accordance with Section
77-18-105
;
(d) to imprisonment;
(e) on or after April 27, 1992, to life in prison without parole; or
(f) to death.
(3) (a) This chapter does not deprive a court of authority conferred by law:
(i) to forfeit property;
(ii) to dissolve a corporation;
(iii) to suspend or cancel a license;
(iv) to permit removal of an individual from office;
(v) to cite for contempt; or
(vi) to impose any other civil penalty.
(b) A court may include a civil penalty in a sentence.
(4) In addition to any other sentence that a sentencing court may impose, the court shall
order an individual to:
(a) pay restitution in accordance with Title 77, Chapter 38b, Crime Victims Restitution
Act;
(b) subject to Subsection (5) and Section 
77-32b-104
, pay the cost of any government
transportation if the individual was:
(i) transported, in accordance with a court order, from one county to another county
within the state;
(ii) charged with a felony or a misdemeanor; and
(iii) convicted of an offense;
(c) subject to Section 
77-32b-104
, pay the cost expended by an appropriate
governmental entity under Section 
77-30-24
 for the extradition of the individual if the
individual:
(i) was extradited to this state, under Title 77, Chapter 30, Extradition, to resolve
pending criminal charges; and
(ii) is convicted of an offense in the county for which the individual is returned;
(d) subject to Subsection (6) and Subsections 
77-32b-104
(2), (3), and (4), pay the cost
of medical care, treatment, hospitalization, and related transportation, as described in Section
17-50-319
, that is provided by a county to the individual while the individual is in a county
correctional facility before and after sentencing if:
(i) the individual is convicted of an offense that results in incarceration in the county
correctional facility; and
(ii) (A) the individual is not a state prisoner housed in the county correctional facility
through a contract with the Department of Corrections; or
(B) the reimbursement does not duplicate the reimbursement under Section 
64-13e-104
if the individual is a state probationary inmate or a state parole inmate; and
(e) pay any other cost that the court determines is appropriate under Section
77-32b-104
.
(5) (a) The court may not order an individual to pay the costs of government
transportation under Subsection (4)(b) if:
(i) the individual is charged with an infraction or a warrant is issued for an infraction
on a subsequent failure to appear; or
(ii) the individual was not transported in accordance with a court order.
(b) (i) The cost of governmental transportation under Subsection (4)(b) shall be
calculated according to the following schedule:
(A) $100 for up to 100 miles that an individual is transported;
(B) $200 for 100 miles to 200 miles that an individual is transported; and
(C) $350 for 200 miles or more that an individual is transported.
(ii) The schedule under Subsection (5)(b)(i) applies to each individual transported
regardless of the number of individuals transported in a single trip.
(6) The cost of medical care under Subsection (4)(d) does not include expenses
incurred by the county correctional facility in providing reasonable accommodation for an
inmate qualifying as an individual with a disability as defined and covered by the Americans
with Disabilities Act, 42 U.S.C. 12101 through 12213, including medical and mental health
treatment for the inmate's disability.
Section 8. Section 
76-3-406
 is amended to read:
76-3-406.
Crimes for which probation, suspension of sentence, lower category of
offense, or hospitalization may not be granted.
(1) Notwithstanding Sections 
76-3-201
 and 
77-18-105
 and [
Title 77, Chapter 16a,
Commitment and Treatment of Persons with a Mental Illness
] 
Title 77, Chapter 16a,
Commitment and Treatment of Individuals with a Mental Condition
, except as provided in
Section 
76-5-406.5
or Subsection 
77-16a-103
(6) or (7)
, probation may not be granted, the
execution or imposition of sentence may not be suspended, the court may not enter a judgment
for a lower category of offense, and hospitalization may not be ordered, the effect of which
would in any way shorten the prison sentence for an individual who commits a capital felony or
a first degree felony involving:
(a) Section 
76-5-202
, aggravated murder;
(b) Section 
76-5-203
, murder;
(c) Section 
76-5-301.1
, child kidnaping;
(d) Section 
76-5-302
, aggravated kidnaping;
(e) Section 
76-5-402
, rape, if the individual is sentenced under Subsection
76-5-402
(3)(b), (3)(c), or (4);
(f) Section 
76-5-402.1
, rape of a child;
(g) Section 
76-5-402.2
, object rape, if the individual is sentenced under Subsection
76-5-402.2
(3)(b), (3)(c), or (4);
(h) Section 
76-5-402.3
, object rape of a child;
(i) Section 
76-5-403
, forcible sodomy, if the individual is sentenced under Subsection
76-5-403
(3)(b), (3)(c), or (4);
(j) Section 
76-5-403.1
, sodomy on a child;
(k) Section 
76-5-404
, forcible sexual abuse, if the individual is sentenced under
Subsection 
76-5-404
(3)(b)(i) or (ii);
(l) Section 
76-5-404.3
, aggravated sexual abuse of a child;
(m) Section 
76-5-405
, aggravated sexual assault; or
(n) any attempt to commit a felony listed in Subsection (1)(f), (h), or (j).
(2) Except for an offense before the district court in accordance with Section 
80-6-502
or 
80-6-504
, the provisions of this section do not apply if the sentencing court finds that the
defendant:
(a) was under 18 years old at the time of the offense; and
(b) could have been adjudicated in the juvenile court but for the delayed reporting or
delayed filing of the information.
Section 9. Section 
76-5-205.5
 is amended to read:
76-5-205.5.
Special mitigation for mental condition or provocation -- Burden of
proof -- Charge reduction.
(1) (a) As used in this section:
(i) (A) "Extreme emotional distress" means an overwhelming reaction of anger, shock,
or grief that:
(I) causes the defendant to be incapable of reflection and restraint; and
(II) would cause an objectively reasonable person to be incapable of reflection and
restraint.
(B) "Extreme emotional distress" does not include:
(I) a condition resulting from [
mental illness
] 
a mental condition
; or
(II) distress that is substantially caused by the defendant's own conduct.
(ii) "Mental [
illness
] 
condition
" means the same as that term is defined in Section
76-2-305
.
(b) The terms defined in Section 
76-1-101.5
 apply to this section.
(2) Special mitigation exists when a defendant causes the death of another individual or
attempts to cause the death of another individual:
(a) (i) under circumstances that are not legally justified, but the defendant acts under a
delusion attributable to a mental [
illness
] 
condition
;
(ii) the nature of the delusion is such that, if the facts existed as the defendant believed
them to be in the delusional state, those facts would provide a legal justification for the
defendant's conduct; and
(iii) the defendant's actions, in light of the delusion, are reasonable from the objective
viewpoint of a reasonable person; or
(b) except as provided in Subsection (4), under the influence of extreme emotional
distress that is predominantly caused by the victim's highly provoking act immediately
preceding the defendant's actions.
(3) A defendant who is under the influence of voluntarily consumed, injected, or
ingested alcohol, controlled substances, or volatile substances at the time of the alleged offense
may not claim mitigation of the offense under Subsection (2)(a) on the basis of 
a
 mental
[
illness
] 
condition
 if the alcohol or substance causes, triggers, or substantially contributes to the
defendant's mental [
illness
] 
condition
.
(4) A defendant may not claim special mitigation under Subsection (2)(b) if:
(a) the time period after the victim's highly provoking act and before the defendant's
actions was long enough for an objectively reasonable person to have recovered from the
extreme emotional distress;
(b) the defendant responded to the victim's highly provoking act by inflicting serious or
substantial bodily injury on the victim over a prolonged period, or by inflicting torture on the
victim, regardless of whether the victim was conscious during the infliction of serious or
substantial bodily injury or torture; or
(c) the victim's highly provoking act, described in Subsection (2)(b), is comprised of
words alone.
(5) If the trier of fact finds that the elements of aggravated murder, attempted
aggravated murder, murder, or attempted murder are proven beyond a reasonable doubt, and
also finds that the existence of special mitigation under this section is established by a
preponderance of the evidence, the court shall enter a judgment of conviction in accordance
with Subsection 
76-5-202
(3)(f)(i), 
76-5-202
(3)(f)(ii), 
76-5-203
(3)(b)(i), or 
76-5-203
(3)(b)(ii),
respectively.
(6) If the issue of special mitigation is submitted to the trier of fact, the trier of fact
shall return a special verdict at the same time as the general verdict, indicating whether it finds
special mitigation.
(7) (a) If a jury is the trier of fact, a unanimous vote of the jury is required to find
special mitigation under this section.
(b) If the jury unanimously finds that the elements of an offense described in
Subsection (5) are proven beyond a reasonable doubt, and finds special mitigation by a
unanimous vote, the jury shall return a general verdict finding the defendant guilty of the
charged crime and a special verdict indicating special mitigation.
(c) If the jury unanimously finds that the elements of an offense described in
Subsection (5) are proven beyond a reasonable doubt but finds by a unanimous vote that
special mitigation is not established, or if the jury is unable to unanimously agree that special
mitigation is established, the jury shall convict the defendant of the greater offense for which
the prosecution proves all the elements beyond a reasonable doubt.
Section 10. Section 
76-5-303.5
 is amended to read:
76-5-303.5.
Notification of conviction of custodial interference.
(1) As used in this section:
(a) (i) "Convicted" means a conviction by plea or verdict or adjudication in juvenile
court of a crime or offense.
(ii) "Convicted" includes:
(A) a plea of guilty or guilty [
and mentally ill
] 
with a mental condition
;
(B) a plea of no contest; and
(C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
accordance with the plea in abeyance agreement.
(b) Terms defined in Section 
76-1-101.5
 apply to this section.
(2) If an individual is convicted of custodial interference under Section 
76-5-303
, the
court shall notify the Driver License Division, created in Section 
53-3-103
, of the conviction,
and whether the conviction is for:
(a) a class B misdemeanor, under Subsection 
76-5-303
(3)(a);
(b) a class A misdemeanor, under Subsection 
76-5-303
(3)(b); or
(c) a felony, under Subsection 
76-5-303
(3)(c).
Section 11. Section 
76-10-1311
 is amended to read:
76-10-1311.
Mandatory testing -- Retention of offender medical file -- Civil
liability.
(1) A person who has entered a plea of guilty, a plea of no contest, a plea of guilty [
and
mentally ill
] 
with a mental condition
, or been found guilty for violation of Section 
76-10-1302
,
76-10-1303
, or 
76-10-1313
 shall be required to submit to a mandatory test to determine if the
offender is an HIV positive individual. The mandatory test shall be required and conducted
prior to sentencing.
(2) If the mandatory test has not been conducted prior to sentencing, and the convicted
offender is already confined in a county jail or state prison, such person shall be tested while in
confinement.
(3) The local law enforcement agency shall cause the blood specimen of the offender as
defined in Subsection (1) confined in county jail to be taken and tested.
(4) The Department of Corrections shall cause the blood specimen of the offender
defined in Subsection (1) confined in any state prison to be taken and tested.
(5) The local law enforcement agency shall collect and retain in the offender's medical
file the following data:
(a) the HIV infection test results;
(b) a copy of the written notice as provided in Section 
76-10-1312
;
(c) photographic identification; and
(d) fingerprint identification.
(6) The local law enforcement agency shall classify the medical file as a private record
pursuant to Subsection 
63G-2-302
(1)(b) or a controlled record pursuant to Section 
63G-2-304
.
(7) The person tested shall be responsible for the costs of testing, unless the person is
indigent. The costs will then be paid by the local law enforcement agency or the Department of
Corrections from the General Fund.
(8) (a) The laboratory performing testing shall report test results to only designated
officials in the Department of Corrections, the Department of Health, and the local law
enforcement agency submitting the blood specimen.
(b) Each department or agency shall designate those officials by written policy.
(c) Designated officials may release information identifying an offender under Section
76-10-1302
, 
76-10-1303
, or 
76-10-1313
 who has tested HIV positive as provided under
Subsection 
63G-2-202
(1) and for purposes of prosecution pursuant to Section 
76-10-1309
.
(9) (a) An employee of the local law enforcement agency, the Department of
Corrections, or the Department of Health who discloses the HIV test results under this section
is not civilly liable except when disclosure constitutes fraud or willful misconduct as provided
in Section 
63G-7-202
.
(b) An employee of the local law enforcement agency, the Department of Corrections,
or the Department of Health who discloses the HIV test results under this section is not civilly
or criminally liable, except when disclosure constitutes a knowing violation of Section
63G-2-801
.
(10) When the medical file is released as provided in Section 
63G-2-803
, the local law
enforcement agency, the Department of Corrections, or the Department of Health or its officers
or employees are not liable for damages for release of the medical file.
Section 12. Section 
77-13-1
 is amended to read:
77-13-1.
Kinds of pleas.
(1) There are five kinds of pleas to an indictment or information:
(a) not guilty;
(b) guilty;
(c) no contest;
(d) not guilty by reason of insanity; and
(e) guilty with a mental [
illness
] 
condition
 at the time of the offense.
(2) An alternative plea of not guilty or not guilty by reason of insanity may be entered.
Section 13. Section 
77-16a-101
 is amended to read:
CHAPTER 16a. COMMITMENT AND TREATMENT OF INDIVIDUALS WITH A
MENTAL CONDITION
Part 1. Plea and Verdict of Guilty with a Mental Condition
77-16a-101.
Definitions.
As used in this chapter:
(1) "Board" means the Board of Pardons and Parole established under Section 
77-27-2
.
(2) "Department" means the Department of 
Health and
 Human Services.
(3) "Executive director" means the executive director of the Department of 
Health and
Human Services.
(4) "Forensic evaluator" means a licensed mental health professional who is:
(a) not involved in the defendant's treatment; and
(b) trained and qualified to conduct a guilty with a mental condition evaluation.
(5) "Mental condition" means the same as that term is defined in Section 
76-2-305
.
(6) "Mental disability" means the same as that term is defined in Section 
76-2-305
.
[
(4)
] 
(7)
 "Mental health facility" means the Utah State Hospital or other facility that
provides mental health services under contract with the division, a local mental health
authority, or organization that contracts with a local mental health authority.
(8) "Mental health supervision" includes regular and periodic activities including:
(a) the review of a defendant's assessment, diagnostic formulation, individual service
plan development, and progress toward completion of care; and
(b) identification of barriers to a defendant's care, assistance in removing barriers to a
defendant's care, continuation of services to a defendant, authorization of care for a defendant,
and the observation of the delivery of clinical care to a defendant.
[
(5)
] 
(9)
 "Mental illness" [
is as
] 
means the same as that term is
 defined in Section
76-2-305
.
[
(6)
] 
(10)
 "Offender with a mental [
illness
] 
condition
" means an individual who has
been adjudicated guilty with a mental [
illness, including an individual who has an intellectual
disability
] 
condition
.
(11) "Secure setting" means a jail, prison, or locked inpatient medical facility approved
by the department.
[
(7)
] 
(12)
 "UDC" means the Department of Corrections.
Section 14. Section 
77-16a-102
 is amended to read:
77-16a-102.
Jury instructions.
(1) If a defendant asserts a defense of not guilty by reason of insanity, the court shall
instruct the jury that the jury may find the defendant:
(a) guilty;
(b) guilty with a mental [
illness
] 
condition
 at the time of the offense;
(c) guilty of a lesser offense;
(d) guilty of a lesser offense with a mental [
illness
] 
condition
 at the time of the offense;
(e) not guilty by reason of insanity; or
(f) not guilty.
(2) (a) When a defendant asserts a mental defense pursuant to Section 
76-2-305
 or
asserts special mitigation reducing the level of an offense pursuant to Subsection
76-5-205.5
(2)(a), or when the evidence raises the issue and either party requests the instruction,
the court shall instruct the jury that if the jury finds a defendant guilty by proof beyond a
reasonable doubt of a charged offense or lesser included offense, the jury shall also return a
special verdict indicating whether the jury finds that the defendant had a mental [
illness
]
condition
 at the time of the offense.
(b) If the jury finds the defendant guilty of the charged offense by proof beyond a
reasonable doubt, and by special verdict finds the defendant had a mental [
illness
] 
condition
 at
the time of the offense, the jury shall return the general verdict of "guilty with a mental [
illness
]
condition
 at the time of the offense."
(c) If the jury finds the defendant guilty of a lesser offense by proof beyond a
reasonable doubt, and by special verdict finds the defendant had a mental [
illness
] 
condition
 at
the time of the offense, the jury shall return the general verdict of "guilty of a lesser offense
with a mental [
illness
] 
condition
 at the time of the offense."
(d) If the jury finds the defendant guilty of the charged offense or a lesser included
offense and does not find that the defendant had a mental [
illness
] 
condition
 at the time of the
offense, the jury shall return a verdict of "guilty" of the offense, along with the special verdict
form indicating that the jury did not find that the defendant had a mental [
illness
] 
condition
 at
the time of the offense.
(e) The special verdict shall be returned by the jury at the same time as the general
verdict, to indicate the basis for the jury's general verdict.
(3) (a) In determining whether a defendant should be found guilty with a mental
[
illness
] 
condition
 at the time of the offense, the court shall instruct the jury that the standard of
proof applicable to a finding of mental [
illness
] 
condition
 is by a preponderance of the
evidence.
(b) The court shall also instruct the jury that the standard of preponderance of the
evidence does not apply to the elements establishing a defendant's guilt, and that the proof of
the elements establishing a defendant's guilt of an offense must be proven beyond a reasonable
doubt.
(4) (a) When special mitigation based on extreme emotional distress is at issue
pursuant to Subsection 
76-5-205.5
(2)(b), the jury shall, in addition to the jury's general verdict,
return a special verdict.
(b) The special verdict shall be returned by the jury at the same time as the general
verdict, to indicate the basis for the jury's general verdict.
Section 15. Section 
77-16a-103
 is repealed and reenacted to read:
77-16a-103.
Plea of guilty with a mental condition-- Procedures -- Sentencing --
Reduction -- Costs.
(1) (a) (i) If a defendant wishes to enter a plea of guilty with a mental condition, the
parties may stipulate as to:
(A) whether the defendant had a mental condition at the time of the commission of the
offense; and
(B) whether the defendant could benefit from supervision or treatment.
(ii) If the parties stipulate as described in Subsection (1)(a)(i), the court shall enter
findings consistent with the parties' stipulation if the stipulation is supported by sufficient
evidence.
(b) If the parties do not stipulate to Subsection (1)(a)(i), the court shall hold a hearing
and determine, by clear and convincing evidence:
(i) whether the defendant had a mental condition at the time of the commission of the
offense; and
(ii) whether the defendant could benefit from supervision or treatment.
(c) After reviewing the stipulation described in Subsection (1)(a)(i) or conducting a
hearing under Subsection (1)(b):
(i) if the court finds that the defendant had a mental condition at the time of the
offense, the court shall accept the defendant's plea of guilty with a mental condition; or
(ii) if the court finds that the defendant did not have a mental condition at the time of
the offense, the court may not accept the defendant's plea of guilty with a mental condition.
(2) (a) If a defendant wishes to enter a plea of guilty with a mental condition for a
felony offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
hearing described in Subsection (1)(b), the court may order the defendant to submit to an
examination, which may be conducted only by a forensic evaluator appointed by the
department, to determine:
(i) whether the defendant had a mental condition at the time of the commission of the
offense;
(ii) whether the defendant could benefit from supervision or treatment; or
(iii) whether the defendant currently is competent to enter a plea.
(b) (i) If a defendant wishes to enter a plea of guilty with a mental condition for a
misdemeanor offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
hearing described in Subsection (1)(b), the court may order the defendant to submit to an
examination by a forensic evaluator.
(ii) Unless otherwise ordered by the court, the examination described in Subsection
(2)(b)(i) shall determine:
(A) whether the defendant had a mental condition at the time of the commission of the
offense;
(B) whether the defendant could benefit from supervision or treatment; or
(C) whether the defendant currently is competent to enter a plea.
(3) If a defendant relies on a private mental health evaluation in support of the
defendant's plea of guilty with a mental condition and the parties do not stipulate to Subsection
(1)(a)(i), upon the request of the prosecutor before the hearing described in Subsection (1)(b),
the court shall order the defendant to submit to an examination by:
(a) the department if the offense is a felony; or
(b) the department or a forensic evaluator if the offense is a misdemeanor.
(4) If a court finds that a defendant was guilty with a mental condition at the time of
the offense in accordance with Subsection (1)(c)(i) but would not benefit from available
supervision or treatment, the court shall hold a sentencing hearing within 45 days of the entry
of the defendant's plea of guilty with a mental condition.
(5) (a) If a court finds that a defendant had a mental condition at the time of the
commission of the offense, the defendant could benefit from supervision or treatment, and has
entered a plea of guilty with a mental condition in accordance with Subsection (1)(c)(i), the
court:
(i) shall order:
(A) the department to provide a treatment assessment of the defendant and to submit to
the court treatment recommendations for the defendant; or
(B) the defendant to arrange for a treatment assessment of the defendant with a private
provider and for the private provider to submit to the court treatment recommendations for the
defendant;
(ii) shall schedule a treatment review hearing within 30 days after the day on which the
court entered the plea of guilty with a mental condition; and
(iii) may defer sentencing for up to one year in accordance with Subsection (6), if the
defendant consents to a deferred sentence.
(b) At the treatment review hearing described in Subsection (5)(a)(ii), the court shall:
(i) consider all available diagnosis, treatment, and supervision recommendations;
(ii) if a party does not agree with treatment recommendations issued by the department
under Subsection (5)(a)(i)(A), hold a hearing on the issue of the department's recommendations
and make appropriate modifications to the recommendations if necessary; and
(iii) order the defendant to comply with all treatment and supervision recommendations
that the court finds are in the best interest of the defendant and public safety.
(c) (i) In determining treatment and supervision recommendations under Subsection
(5)(b), the court may order the defendant to be placed in a secure setting as described in
Subsections (5)(c)(ii) and (iii) if the court finds that the placement would be in the best interest
of the defendant, a victim of the defendant, or public safety.
(ii) (A) If the offense is a class C misdemeanor, the court may not place the defendant
in a secure setting for more than 90 days.
(B) If the offense is a class B misdemeanor, the court may not place the defendant in a
secure setting for more than six months.
(C) If the offense is a class A misdemeanor or a felony, the court may place the
defendant in a secure setting for up to one year.
(iii) The court shall, before making a determination as to a secure setting placement,
notify the executive director of the proposed placement and provide the department with an
opportunity to:
(A) evaluate the defendant; and
(B) make a recommendation regarding placement to the court.
(d) If the court determines that the defendant is eligible for supervised release as part of
the defendant's treatment and supervision recommendations under Subsection (5)(b), except as
provided in Section 
76-3-406
, the court may order:
(i) if the offense is a felony:
(A) supervision by Adult Probation and Parole for a period of up to one year in
accordance with the applicable supervision provisions described in Title 64, Chapter 13,
Department of Corrections - State Prison; or
(B) supervision including mental health supervision by a public or private entity that
provides mental or behavioral health services and is approved by the department or the court;
or
(ii) if the offense is a misdemeanor, supervision including mental health supervision
by:
(A) a local mental health authority; or
(B) a public or private entity that provides mental or behavioral health services and is
approved by the department or the court.
(e) (i) After the initial review hearing described in Subsection (5)(a), the court shall
hold periodic review hearings approximately every 90 days, the frequency of which may be
modified by the court.
(ii) At a review hearing described in Subsection (5)(e)(i):
(A) the department or the department's designee shall report on the progress of the
defendant, provide recommendations for the defendant's future care, treatment, and secure or
unsecure placement, and advise the court on the medical necessity of treatments for the
defendant;
(B) the court shall review the status of the defendant and determine whether any
changes are needed to the defendant's supervision or treatment plan; and
(C) a party may request, if the party has a good faith basis, that the court review or
change the defendant's placement within a secure or non-secure setting.
(f) If a defendant is willfully non-compliant with the treatment or supervision ordered
by the court under this Subsection (5), the court shall hold an order to show cause hearing to
determine whether the court should:
(i) proceed with sentencing under Subsection (6);
(ii) change the defendant's placement to a secure setting;
(iii) impose another sanction; or
(iv) take no action.
(6) (a) The court shall defer sentencing for a defendant who has pleaded guilty with a
mental condition as described in Subsection (5) until:
(i) the court determines, after an order to show cause hearing or a review hearing as
described in Subsection (5), that:
(A) the defendant is willfully non-compliant with treatment or supervision and is
unlikely to become compliant with further ordered treatment or supervision; or
(B) the defendant has reached the maximum benefit of treatment and supervision; or
(ii) one year has elapsed after the day on which the court entered the defendant's plea of
guilty with a mental condition.
(b) At the sentencing hearing, the court shall:
(i) consider all treatment and supervision that has occurred before the sentencing
hearing in the defendant's case;
(ii) credit any time the defendant has spent in a mental health facility or other
residential treatment facility or a secure facility against the defendant's sentence;
(iii) consider victim input;
(iv) consider the best interests of the defendant, including which sentence will help
prevent the defendant:
(A) from losing the defendant's ability to control the defendant's state of mental health;
and
(B) from committing additional criminal conduct related to the defendant's mental
condition;
(v) consider the best interest of public safety; and
(vi) consider any other relevant factor or circumstance.
(7) Except as provided in Subsection (7)(c), after a defendant who has been sentenced
under Subsection (6) has completed the defendant's sentence and any probation or parole:
(a) notwithstanding the contrary provisions in Subsection 
76-3-402
(4) or 
76-3-406
(1),
the court has jurisdiction to enter a judgment of conviction and shall reduce the judgment of
conviction for the offense by two degrees from the original offense; and
(b) notwithstanding the contrary provisions in Subsection 
76-3-402
(4) or 
76-3-406
(1),
if the prosecuting attorney specifically agrees in writing or on the court record at any time, the
court has jurisdiction to consider and enter a judgment of conviction and may enter a judgment
of conviction for the offense that is reduced by up to three degrees from the original offense.
(c) If a defendant's probation is revoked and any suspended sentence is imposed, the
defendant may not receive a reduction under this Subsection (7).
(8) (a) (i) Except as provided in Subsection (8)(a)(iv), when the offense is a state
offense, expenses of examination, observation, and treatment for the defendant shall be paid by
the department when not paid for by the defendant's insurance.
(ii) Travel expenses shall be paid by the county where prosecution is commenced.
(iii) Expenses of examination for a defendant charged with a violation of a municipal
or county ordinance shall be paid by the municipality or county that commenced the
prosecution.
(iv) The department is not responsible for payment for an evaluation described in
Subsection (3)(b) that is conducted by a forensic evaluator who is privately retained by a party.
(b) (i) Provisions in this part for the support at public expense of a defendant with a
mental condition do not release an insurer of a defendant with a mental condition from liability
for the care or treatment of the defendant with a mental condition.
(ii) The department is authorized to collect amounts spent on a defendant with a mental
condition from an insurer of the defendant with a mental condition.
(iii) A health insurance company may not deny coverage for court-ordered treatment or
supervision of a defendant with a mental condition solely based on the fact that the treatment or
supervision is ordered by a court if the treatment or supervision is medically necessary and
would otherwise be a covered benefit under the defendant's insurance plan.
Section 16. Section 
77-16a-104
 is amended to read:
77-16a-104.
Verdict of guilty with a mental condition -- Hearing to determine
present mental state.
(1) Upon a verdict of guilty with a mental [
illness
] 
condition
 for the offense charged, or
any lesser offense, the court shall conduct a hearing to determine the defendant's present mental
state.
(2) 
(a)
 The court may order the department to examine the defendant to determine the
defendant's mental condition, and may receive the evidence of any public or private expert
witness offered by the defendant or the prosecutor.
(b)
 The defendant may be placed in the Utah State Hospital for [
that
] 
the
 examination
described in Subsection (2)(a)
 only upon approval of the executive director.
(3) If the court finds by clear and convincing evidence that the defendant currently has
a mental [
illness
] 
condition
, the court shall impose any sentence that could be imposed under
law upon a defendant who does not have a mental [
illness
] 
condition
 and who is convicted of
the same offense, and:
(a) commit the defendant to the department, in accordance with the provisions of
Section 
77-16a-202
, if:
(i) the court gives the department the opportunity to provide an evaluation and
recommendation under Subsection (4); and
(ii) the court finds by clear and convincing evidence that:
(A) because of the defendant's mental [
illness
] 
condition
 the defendant poses an
immediate physical danger to self or others, including jeopardizing the defendant's own or
others' safety, health, or welfare if placed in a correctional or probation setting, or lacks the
ability to provide the basic necessities of life, such as food, clothing, and shelter, if placed on
probation; and
(B) the department is able to provide the defendant with treatment, care, custody, and
security that is adequate and appropriate to the defendant's conditions and needs;
(b) order probation in accordance with Section 
77-16a-201
; or
(c) if the court determines that commitment to the department under Subsection (3)(a)
or probation under Subsection (3)(b) is not appropriate, the court shall place the defendant in
the custody of UDC or a county jail as allowed by law.
(4) In order to [
insure
] 
ensure
 that the requirements of Subsection (3)(a) are met, the
court shall, before making a determination, notify the executive director of the proposed
placement and provide the department with an opportunity to evaluate the defendant and make
a recommendation to the court regarding placement prior to commitment.
(5) If the court finds that the defendant does not currently have a mental [
illness
]
condition
, the court shall sentence the defendant as it would any other defendant.
(6) Expenses for examinations ordered under this section shall be paid in accordance
with Subsection [
77-16a-103
(5)
] 
77-16a-103
(8)
.
Section 17. Section 
77-16a-201
 is amended to read:
Part 2. Disposition of Defendants Found Guilty with a Mental Condition
77-16a-201.
Probation.
(1) (a) In felony cases, when the court proposes to place on probation a defendant who
has pled or is found guilty with a mental [
illness
] 
condition
 at the time of the offense, it shall
request UDC to provide a presentence investigation report regarding whether probation is
appropriate for that defendant and, if so, recommending a specific treatment program. If the
defendant is placed on probation, that treatment program shall be made a condition of
probation, and the defendant shall remain under the jurisdiction of the sentencing court.
(b) The court may not place an offender who has been convicted of the felony offenses
listed in Section 
76-3-406
 on probation, regardless of whether the offender has, or had, a
mental [
illness
] 
condition
.
(2) The period of probation for a felony offense committed by a defendant who has
been found guilty with a mental [
illness
] 
condition
 at the time of the offense may not be
subsequently reduced by the sentencing court without consideration of an updated report on the
mental health status of the defendant.
(3) (a) Treatment ordered by the court under this section may be provided by or under
contract with the department, a mental health facility, a local mental health authority, or, with
the approval of the sentencing court, any other public or private mental health provider.
(b) The entity providing treatment under this section shall file a report with the
defendant's probation officer at least every six months during the term of probation.
(c) Any request for termination of probation regarding a defendant who is receiving
treatment under this section shall include a current mental health report prepared by the
treatment provider.
(4) Failure to continue treatment or any other condition of probation, except by
agreement with the entity providing treatment and the sentencing court, is a basis for initiating
probation violation hearings.
(5) The court may not release an offender with a mental [
illness
] 
condition
 into the
community, as a part of probation, if it finds by clear and convincing evidence that the
offender:
(a) poses an immediate physical danger to self or others, including jeopardizing the
offender's own or others' safety, health, or welfare if released into the community; or
(b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
shelter, if released into the community.
(6) An offender with a mental [
illness
] 
condition
 who is not eligible for release into the
community under the provisions of Subsection (5) may be placed by the court, on probation, in
an appropriate mental health facility.
Section 18. Section 
77-16a-202
 is amended to read:
77-16a-202.
Person found guilty with a mental condition-- Commitment to
department -- Admission to Utah State Hospital.
(1) In sentencing and committing an offender with a mental [
illness
] 
condition
 to the
department under Subsection 
77-16a-104
(3)(a) 
or in a felony case under Subsection
77-16a-103
(6)
, the court shall:
(a) sentence the offender to a term of imprisonment and order that [
he
] 
the offender
 be
committed to the department and admitted to the Utah State Hospital for care and treatment
until transferred to UDC in accordance with Sections 
77-16a-203
 and 
77-16a-204
, making
provision for readmission to the Utah State Hospital whenever the requirements and conditions
of Section 
77-16a-204
 are met; or
(b) [
sentence the offender to a term of imprisonment and
] order that the offender be
committed to the department for care and treatment for no more than 18 months, or until the
offender's condition has been stabilized to the point that commitment to the department and
admission to the Utah State Hospital is no longer necessary to ensure adequate mental health
treatment, whichever occurs first. At the expiration of that time, the court [
may recall the
sentence and commitment, and resentence
] 
shall sentence
 the offender. A [
commitment and
]
retention of jurisdiction under this Subsection (1)(b) shall be specified in [
the sentencing order. 
If that specification is not included in the sentencing order, the offender shall be committed in
accordance with Subsection (1)(a).
] 
a court order.
(2) The court may not retain jurisdiction, under Subsection (1)(b), over the sentence of
an offender with a mental [
illness
] 
condition
 who has been convicted of a capital felony. In
capital cases, the court shall make the findings required by this section after the capital
sentencing proceeding mandated by Section 
76-3-207
.
(3) When an offender is committed to the department and admitted to the Utah State
Hospital under Subsection (1)(b), the department shall provide the court with reports of the
offender's mental health status every six months. Those reports shall be prepared in accordance
with the requirements of Section 
77-16a-203
. Additionally, the court may appoint an
independent examiner to assess the mental health status of the offender.
(4) The period of commitment to the department and admission to the Utah State
Hospital, and any subsequent retransfers to the Utah State Hospital made pursuant to Section
77-16a-204
 may not exceed the maximum sentence imposed by the court. Upon expiration of
that sentence, the administrator of the facility where the offender is located may initiate civil
proceedings for involuntary commitment in accordance with Title 62A, Chapter 5, Services for
People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act.
Section 19. Section 
77-16a-203
 is amended to read:
77-16a-203.
Review of offenders with a mental condition committed to
department -- Recommendations for transfer to Department of Corrections.
(1) (a) The executive director shall designate a review team of at least three qualified
staff members, including at least one licensed psychiatrist, to evaluate the mental condition of
each offender with a mental [
illness
] 
condition
 committed to it in accordance with Section
77-16a-202
, at least once every six months.
(b) If the offender has an intellectual disability, the review team shall include at least
one individual who is a designated intellectual disability professional, as defined in Section
62A-5-101
.
(2) At the conclusion of [
its
] 
the review team's
 evaluation, the review team described
in Subsection (1) shall make a report to the executive director:
(a) regarding the offender's:
(i) current mental condition;
(ii) progress since commitment; and
(iii) prognosis; and
(b) that includes a recommendation regarding whether the offender with a mental
[
illness
] 
condition
 should be:
(i) transferred to UDC; or
(ii) remain in the custody of the department.
(3) (a) The executive director shall notify the UDC medical administrator and the
board's mental health adviser that an offender with a mental [
illness
] 
condition
 is eligible for
transfer to UDC if the review team finds that the offender:
(i) no longer has a mental [
illness
] 
condition
; or
(ii) has a mental [
illness
] 
condition
 and may continue to be a danger to self or others,
but can be controlled if adequate care, medication, and treatment are provided by UDC; and
(iii) the offender's condition has been stabilized to the point that commitment to the
department and admission to the Utah State Hospital are no longer necessary to ensure
adequate mental health treatment.
(b) The administrator of the mental health facility where the offender is located shall
provide the UDC medical administrator with a copy of the reviewing staff's recommendation
and:
(i) all available clinical facts;
(ii) the diagnosis;
(iii) the course of treatment received at the mental health facility;
(iv) the prognosis for remission of symptoms;
(v) the potential for recidivism;
(vi) an estimation of the offender's dangerousness, either to self or others; and
(vii) recommendations for future treatment.
Section 20. Section 
77-16a-204
 is amended to read:
77-16a-204.
UDC acceptance of transfer of persons found guilty with a mental
condition -- Retransfer from UDC to department for admission to the Utah State
Hospital.
(1) The UDC medical administrator shall designate a transfer team of at least three
qualified staff members, including at least one licensed psychiatrist, to evaluate the
recommendation made by the department's review team pursuant to Section 
77-16a-203
. If the
offender has an intellectual disability, the transfer team shall include at least one person who
has expertise in testing and diagnosis of people with intellectual disabilities.
(2) The transfer team shall concur in the recommendation if the transfer team
determines that UDC can provide the offender with a mental [
illness
] 
condition
 with adequate
mental health treatment.
(3) The UDC transfer team and medical administrator shall recommend the facility in
which the offender should be placed and the treatment to be provided in order for the offender's
mental condition to remain stabilized to the director of the Division of Institutional Operations,
within the Department of Corrections.
(4) In the event that the department and UDC do not agree on the transfer of an
offender with a mental [
illness
] 
condition
, the administrator of the mental health facility where
the offender is located shall notify the mental health adviser for the board, in writing, of the
dispute. The mental health adviser shall be provided with copies of all reports and
recommendations. The board's mental health adviser shall make a recommendation to the
board on the transfer and the board shall issue its decision within 30 days.
(5) UDC shall notify the board whenever an offender with a mental [
illness
] 
condition
is transferred from the department to UDC.
(6) When an offender with a mental [
illness
] 
condition
 sentenced under Section
77-16a-202
, who has been transferred from the department to UDC, and accepted by UDC, is
evaluated and it is determined that the offender's mental condition has deteriorated or that the
offender has become mentally unstable, the offender may be readmitted to the Utah State
Hospital in accordance with the findings and procedures described in Section 
62A-15-605.5
.
(7) Any [
person
] 
individual
 readmitted to the Utah State Hospital pursuant to
Subsection (6) shall remain in the custody of UDC, and the state hospital shall act solely as the
agent of UDC.
(8) An offender with a mental [
illness
] 
condition
 who has been readmitted to the Utah
State Hospital pursuant to Subsection (6) shall be transferred back to UDC in accordance with
the provisions of Section 
77-16a-203
.
Section 21. Section 
77-16a-205
 is amended to read:
77-16a-205.
Parole.
(1) When an offender with a mental [
illness
] 
condition
 who has been committed to the
department becomes eligible to be considered for parole, the board shall request a
recommendation from the executive director and from UDC before placing the offender on
parole.
(2) Before setting a parole date, the board shall request that its mental health adviser
prepare a report regarding the offender with a mental [
illness
] 
condition
, including:
(a) all available clinical facts;
(b) the diagnosis;
(c) the course of treatment received at the mental health facility;
(d) the prognosis for remission of symptoms;
(e) potential for recidivism;
(f) an estimation of the dangerousness of the offender with a mental [
illness
] 
condition
either to self or others; and
(g) recommendations for future treatment.
(3) Based on the report described in Subsection (2), the board may place the offender
with a mental [
illness
] 
condition
 on parole. The board may require mental health treatment as
a condition of parole. If treatment is ordered, failure to continue treatment, except by
agreement with the treatment provider, and the board, is a basis for initiation of parole
violation hearings by the board.
(4) UDC, through Adult Probation and Parole, shall monitor the status of an offender
with a mental [
illness
] 
condition
 who has been placed on parole. UDC may provide treatment
by contracting with the department, a local mental health authority, any other public or private
provider, or in-house staff.
(5) The board may not subsequently reduce the period of parole without considering an
updated report on the offender's current mental condition.
Section 22. Section 
77-16a-301
 is amended to read:
77-16a-301.
Mental examination of defendant.
(1) (a) When the court receives notice that a defendant intends to claim that the
defendant is not guilty by reason of insanity or that the defendant had diminished mental
capacity, or that the defendant intends to assert special mitigation under Subsection
76-5-205.5
(2)(a), the court shall order the department to examine the defendant and investigate
the defendant's mental condition.
(b) The person or organization directed by the department to conduct the examination
shall testify at the request of the court or either party in a proceeding in which the testimony is
otherwise admissible.
(c) Pending trial, unless the court or the executive director directs otherwise, the
defendant shall be retained in the same custody or status the defendant was in at the time the
examination was ordered.
(2) (a) The defendant shall be available and shall fully cooperate in the examination by
the department and other independent examiners for the defense and the prosecuting attorney.
(b) If the defendant fails to be available and to fully cooperate, and that failure is
established to the satisfaction of the court at a hearing prior to trial, the defendant is barred
from presenting expert testimony relating to the defendant's defense of 
a
 mental [
illness
]
condition
 at the trial of the case.
(c) The department shall complete the examination within 30 days after the court's
order, and shall prepare and provide to the court prosecutor and defense counsel a written
report concerning the condition of the defendant.
(3) Within 10 days after receipt of the report described in Subsection (2)(c) from the 
department, but not later than five days before the trial of the case, or at any other time the
court directs, the prosecuting attorney shall file and serve upon the defendant a notice of
rebuttal of the defense of 
a
 mental [
illness
] 
condition
, which shall contain the names of
witnesses the prosecuting attorney proposes to call in rebuttal.
(4) The report of another independent examiner is admissible as evidence upon
stipulation of the prosecution and defense.
(5) (a) This section does not prevent a party from producing other testimony as to the
mental condition of the defendant.
(b) An expert witness who is not appointed by the court is not entitled to compensation
under Subsection (7).
(6) This section does not require the admission of evidence not otherwise admissible.
(7) (a) The department shall pay the expenses of an examination ordered by the court
under this section.
(b) The department shall charge the county where the prosecution is commenced for
travel expenses associated with an examination incurred by a defendant.
(c) The department shall charge the entity commencing the prosecution for an
examination of a defendant charged with a violation of a municipal or county ordinance.
Section 23. Section 
77-16a-302
 is amended to read:
77-16a-302.
Persons found not guilty by reason of insanity -- Disposition.
(1) Upon a verdict of not guilty by reason of insanity, the court shall conduct a hearing
within 10 days to determine whether the defendant currently has a mental [
illness
] 
condition
. 
The defense counsel and prosecutors may request further evaluations and present testimony
from those examiners.
(2) After the hearing and upon consideration of the record, the court shall order the
defendant committed to the department if it finds by clear and convincing evidence that:
(a) the defendant has a mental [
illness
] 
condition
; and
(b) because of that mental [
illness
] 
condition
 the defendant presents a substantial
danger to self or others.
(3) The period of commitment described in Subsection (2) may not exceed the period
for which the defendant could be incarcerated had the defendant been convicted and received
the maximum sentence for the crime of which the defendant was accused. At the time that
period expires, involuntary civil commitment proceedings may be instituted in accordance with
Title 62A, Chapter 15, Substance Abuse and Mental Health Act.
Section 24. Section 
77-16a-304
 is amended to read:
77-16a-304.
Review after commitment.
(1) (a) The executive director, or the executive director's designee, shall establish a
review team of at least three qualified staff members to review the defendant's mental condition
at least every six months.
(b) The team described in Subsection (1)(a) shall include:
(i) at least one psychiatrist; and
(ii) if the defendant has an intellectual disability, at least one staff member who is a
designated intellectual disability professional.
(2) If the review team described in Subsection (1) finds that the defendant has
recovered from the defendant's mental [
illness
] 
condition
, or, that the defendant still has a
mental [
illness
] 
condition
 but does not present a substantial danger to self or others, the
executive director, or the executive director's designee, shall:
(a) notify the court that committed the defendant that the defendant is a candidate for
discharge; and
(b) provide the court with a report stating the facts that form the basis for the
recommendation.
(3) (a) The court shall conduct a hearing within 10 business days after receipt of the
executive director's, or the executive director's designee's, notification.
(b) The court clerk shall provide notice of the date and time of the hearing to:
(i) the prosecuting attorney;
(ii) the defendant's attorney; and
(iii) any victim of the crime for which the defendant was found not guilty by reason of
insanity.
(4) (a) The court shall order that the defendant be discharged from commitment if the
court finds that the defendant:
(i) no longer has a mental [
illness
] 
condition
; or
(ii) has a mental [
illness
] 
condition
, but no longer presents a substantial danger to self
or others.
(b) The court shall order the person conditionally released in accordance with Section
77-16a-305
 if the court finds that the defendant:
(i) has a mental [
illness
] 
condition
;
(ii) is a substantial danger to self or others; and
(iii) can be controlled adequately if conditionally released with treatment as a condition
of release.
(c) The court shall order that the commitment be continued if the court finds that the
defendant:
(i) has not recovered from the defendant's mental [
illness
] 
condition
;
(ii) is a substantial danger to self or others; and
(iii) cannot adequately be controlled if conditionally released on supervision.
(d) (i) Except as provided in Subsection (4)(d)(ii), the court may not discharge a
defendant whose mental [
illness
] 
condition
 is in remission as a result of medication or
hospitalization if it can be determined within reasonable medical probability that without
continued medication or hospitalization the defendant's mental [
illness
] 
condition
 will reoccur,
making the defendant a substantial danger to self or others.
(ii) Notwithstanding Subsection (4)(d)(i), the defendant described in Subsection
(4)(d)(i) may be a candidate for conditional release, in accordance with Section 
77-16a-305
.
Section 25. Section 
77-16a-305
 is amended to read:
77-16a-305.
Conditional release.
(1) If the review team finds that a defendant is not eligible for discharge, in accordance
with Section 
77-16a-304
, but that [
his
] 
the defendant's
 mental [
illness
] 
condition
 and
dangerousness can be controlled with proper care, medication, supervision, and treatment if
[
he
] 
the defendant
 is conditionally released, the review team shall prepare a report and notify
the executive director, or [
his
] 
the executive director's
 designee, that the defendant is a
candidate for conditional release.
(2) The executive director, or [
his
] 
the executive director's
 designee, shall prepare a
conditional release plan, listing the type of care and treatment that the individual needs and
recommending a treatment provider.
(3) The executive director, or [
his
] 
the executive director's
 designee, shall provide the
court, the defendant's attorney, and the prosecuting attorney with a copy of the report issued by
the review team under Subsection (1), and the conditional release plan. The court shall
conduct a hearing on the issue of conditional release within 30 days after receipt of those
documents.
(4) The court may order that a defendant be conditionally released if it finds that, even
though the defendant presents a substantial danger to [
himself
] 
self
 or others, [
he
] 
the
defendant
 can be adequately controlled with supervision and treatment that is available and
provided for in the conditional release plan.
(5) The department may provide treatment or contract with a local mental health
authority or other public or private provider to provide treatment for a defendant who is
conditionally released under this section.
Section 26. Section 
77-16a-306
 is amended to read:
77-16a-306.
Continuing review -- Discharge.
(1) Each entity that provides treatment for a defendant committed to the department as
not guilty by reason of insanity under this part shall review the status of each defendant at least
once every six months. If the treatment provider finds that a defendant has recovered from the
defendant's mental [
illness
] 
condition
, or, if the defendant has a mental [
illness
] 
condition
, no
longer presents a substantial danger to self or others, [
it
] 
the treatment provider
 shall notify the
executive director of [
its
] 
the treatment provider's
 findings.
(2) Upon receipt of notification under Subsection (1), the executive director shall
designate a review team, in accordance with Section 
77-16a-304
, to evaluate the defendant. If
that review team concurs with the treatment provider's assessment, the executive director shall
notify the court, the defendant's attorney, and the prosecuting attorney that the defendant is a
candidate for discharge. The court shall conduct a hearing, in accordance with Section
77-16a-302
, within 10 business days after receipt of that notice.
(3) The court may not discharge an individual whose mental [
illness
] 
condition
 is in
remission as a result of medication or hospitalization if it can be determined within reasonable
medical probability that without continued medication or hospitalization the defendant's mental
[
illness
] 
condition
 will reoccur, making the defendant a substantial danger to self or others.
Section 27. Section 
77-27-2
 is amended to read:
77-27-2.
Board of Pardons and Parole -- Creation -- Compensation -- Functions.
(1) (a) There is created the Board of Pardons and Parole.
(b) The board shall consist of five full-time members and not more than five pro
tempore members to be appointed by the governor with the advice and consent of the Senate in
accordance with Title 63G, Chapter 24, Part 2, Vacancies, and as provided in this section.
(c) The members of the board shall be resident citizens of the state.
(d) The governor shall establish salaries for the members of the board within the salary
range fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
(2) (a) (i) (A) The full-time board members shall serve terms of five years.
(B) The terms of the full-time members shall be staggered so one board member is
appointed for a term of five years on March 1 of each year.
(ii) (A) The pro tempore members shall serve terms of five years, beginning on March
1 of the year of appointment, with no more than one pro tempore member term beginning or
expiring in the same calendar year.
(B) If a pro tempore member vacancy occurs, the board may submit the names of not
fewer than three or more than five persons to the governor for appointment to fill the vacancy.
(b) All vacancies occurring on the board for any cause shall be filled by the governor
with the advice and consent of the Senate in accordance with this section for the unexpired
term of the vacating member.
(c) The governor may at any time remove any member of the board for inefficiency,
neglect of duty, malfeasance or malfeasance in office, or for cause upon a hearing.
(d) (i) A member of the board may not hold any other office in the government of the
United States, this state or any other state, or of any county government or municipal
corporation within a state.
(ii) A member may not engage in any occupation or business inconsistent with the
member's duties.
(e) (i) A majority of the board constitutes a quorum for the transaction of business,
including the holding of hearings at any time or any location within or without the state, or for
the purpose of exercising any duty or authority of the board.
(ii) An action is deemed the action of the board if the action is taken by a majority of
the board regarding whether:
(A) parole, pardon, commutation, or termination of a sentence is granted in an
offender's case;
(B) remission of a criminal accounts receivable, or a fines or forfeiture, is granted in an
offender's case; or
(C) an offender's payment schedule for a criminal accounts receivable is modified.
(iii) A majority vote of the five full-time members of the board is required for adoption
of rules or policies of general applicability as provided by statute.
(iv) Notwithstanding Subsection (2)(e)(iii), a vacancy on the board does not impair the
right of the remaining board members to exercise any duty or authority of the board as long as a
majority of the board remains.
(v) A board member shall comply with the conflict of interest provisions described in
Title 63G, Chapter 24, Part 3, Conflicts of Interest.
(f) (i) Any investigation, inquiry, or hearing that the board has authority to undertake or
hold may be conducted by any board member or an examiner appointed by the board.
(ii) When an action under Subsection (2)(f)(i) is approved and confirmed by the board
and filed in the board's office, the action is considered to be the action of the board and has the
same effect as if originally made by the board.
(g) (i) When a full-time board member is absent or in other extraordinary
circumstances, the chair may, as dictated by public interest and efficient administration of the
board, assign a pro tempore member to act in the place of a full-time member.
(ii) Pro tempore members shall receive a per diem rate of compensation as established
by the Division of Finance and all actual and necessary expenses incurred in attending to
official business.
(h) The chair may request staff and administrative support as necessary from the
department.
(3) (a) Except as provided in Subsection (3)(b), the commission shall:
(i) recommend five applicants to the governor for a full-time member appointment to
the board; and
(ii) consider applicants' knowledge of the criminal justice system, state and federal
criminal law, judicial procedure, corrections policies and procedures, and behavioral sciences.
(b) The procedures and requirements of Subsection (3)(a) do not apply if the governor
appoints a sitting board member to a new term of office.
(4) (a) (i) The board shall appoint an individual to serve as the board's mental health
adviser and may appoint other staff necessary to aid the board in fulfilling the board's
responsibilities under [
Title 77, Chapter 16a, Commitment and Treatment of Persons with a
Mental Illness
] 
Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental
Condition
.
(ii) The adviser shall prepare reports and recommendations to the board on all persons
adjudicated as guilty with a mental [
illness
] 
condition
, in accordance with [
Title 77, Chapter
16a, Commitment and Treatment of Persons with a Mental Illness
] 
Title 77, Chapter 16a,
Commitment and Treatment of Individuals with a Mental Condition
.
(b) The mental health adviser shall possess the qualifications necessary to carry out the
duties imposed by the board and may not be employed by the department or the Utah State
Hospital.
(i) The board may review outside employment by the mental health advisor.
(ii) The board shall develop rules governing employment with entities other than the
board by the mental health advisor for the purpose of prohibiting a conflict of interest.
(c) The mental health adviser shall:
(i) act as liaison for the board with the Department of 
Health and
 Human Services and
local mental health authorities;
(ii) educate the members of the board regarding the needs and special circumstances of
persons with a mental [
illness
] 
condition
 in the criminal justice system;
(iii) in cooperation with the department, monitor the status of persons in the prison
who have been found guilty with a mental [
illness
] 
condition
;
(iv) monitor the progress of other persons under the board's jurisdiction who have a
mental [
illness
] 
condition
;
(v) conduct hearings as necessary in the preparation of reports and recommendations;
and
(vi) perform other duties as assigned by the board.
Section 28. Section 
77-27-5.3
 is amended to read:
77-27-5.3.
Meritless and bad faith litigation.
(1) For purposes of this section:
(a) "Convicted" means a conviction by entry of a plea of guilty or nolo contendere,
guilty with a mental [
illness
] 
condition
, no contest, and conviction of any crime or offense.
(b) "Prisoner" means a person who has been convicted of a crime and is incarcerated
for that crime or is being held in custody for trial or sentencing.
(2) In any case filed in state or federal court in which a prisoner submits a claim that
the court finds to be without merit and brought or asserted in bad faith, the Board of Pardons
and Parole and any county jail administrator may consider that finding in any early release
decisions concerning the prisoner.
Section 29. Section 
77-27-10.5
 is amended to read:
77-27-10.5.
Special condition of parole -- Penalty.
(1) In accordance with Section 
77-27-5
, the Board of Pardons and Parole may release
the defendant on parole and as a condition of parole, the board may order the defendant to be
prohibited from directly or indirectly engaging in any profit or benefit generating activity
relating to the publication of facts or circumstances pertaining to the defendant's involvement
in the criminal act for which the defendant is convicted.
(2) The order may prohibit the defendant from contracting with any person, firm,
corporation, partnership, association, or other legal entity with respect to the commission and
reenactment of the defendant's criminal conduct, by way of a movie, book, magazine article,
tape recording, phonograph record, radio, or television presentations, live entertainment of any
kind, or from the expression of the defendant's thoughts, feelings, opinions, or emotions
regarding the criminal conduct.
(3) The board may order that the prohibition includes any event undertaken and
experienced by the defendant while avoiding apprehension from the authorities or while facing
criminal charges.
(4) The board may order that any action taken by the defendant by way of execution of
power of attorney, creation of corporate entities, or other action to avoid compliance with the
board's order shall be grounds for revocation of parole as provided in Section 
77-27-11
.
(5) Adult Probation and Parole shall notify the board of any alleged violation of the
board's order under this section.
(6) The violation of the board's order shall be considered a violation of parole.
(7) For purposes of this section:
(a) "convicted" means a conviction by entry of a plea of guilty or nolo contendere,
guilty with a mental [
illness
] 
condition
, no contest, and conviction of any crime or offense; and
(b) "defendant" means the convicted defendant, the defendant's assignees, and
representatives acting on the defendant's authority.
Section 30. Section 
77-36-1.1
 is amended to read:
77-36-1.1.
Enhancement of offense and penalty for subsequent domestic violence
offenses.
(1) As used in this section:
(a) (i) "Convicted" means a conviction by plea or verdict of a crime or offense.
(ii) "Convicted" includes:
(A) a plea of guilty or guilty [
and mentally ill
] 
with a mental condition
;
(B) a plea of no contest; and
(C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
accordance with the plea in abeyance agreement.
(iii) "Convicted" does not include an adjudication in juvenile court.
(b) "Criminal mischief offense" means commission or attempt to commit an offense
under Section 
76-6-106
 by one cohabitant against another.
(c) "Offense against the person" means commission or attempt to commit an offense
under Title 76, Chapter 5, Part 1, Assault and Related Offenses, Part 2, Criminal Homicide,
Part 3, Kidnapping, Trafficking, and Smuggling, Part 4, Sexual Offenses, or Part 7, Genital
Mutilation, by one cohabitant against another.
(d) "Qualifying domestic violence offense" means:
(i) a domestic violence offense in Utah; or
(ii) an offense in any other state, or in any district, possession, or territory of the United
States, that would be a domestic violence offense under Utah law.
(2) An individual who is convicted of a domestic violence offense is guilty of a class B
misdemeanor if:
(a) the domestic violence offense described in this Subsection (2) is designated by law
as a class C misdemeanor; and
(b) the individual commits or is convicted of the domestic violence offense described
in this Subsection (2):
(i) within 10 years after the day on which the individual is convicted of a qualifying
domestic violence offense that is not a criminal mischief offense; or
(ii) within five years after the day on which the individual is convicted of a criminal
mischief offense.
(3) An individual who is convicted of a domestic violence offense is guilty of a class A
misdemeanor if:
(a) the domestic violence offense described in this Subsection (3) is designated by law
as a class B misdemeanor; and
(b) the individual commits or is convicted of the domestic violence offense described
in this Subsection (3):
(i) within 10 years after the day on which the individual is convicted of a qualifying
domestic violence offense that is not a criminal mischief offense; or
(ii) within five years after the day on which the individual is convicted of a criminal
mischief offense.
(4) An individual who is convicted of a domestic violence offense is guilty of a third
degree felony if:
(a) the domestic violence offense described in this Subsection (4) is designated by law
as a class B misdemeanor offense against the person and the individual:
(i) (A) commits or is convicted of the domestic violence offense described in this
Subsection (4) within 10 years after the day on which the individual is convicted of a
qualifying domestic violence offense that is not a criminal mischief offense; and
(B) is convicted of another qualifying domestic violence offense that is not a criminal
mischief offense after the day on which the individual is convicted of the qualifying domestic
violence offense described in Subsection (4)(a)(i)(A) and before the day on which the
individual is convicted of the domestic violence offense described in this Subsection (4);
(ii) (A) commits or is convicted of the domestic violence offense described in this
Subsection (4) within five years after the day on which the individual is convicted of a criminal
mischief offense; and
(B) is convicted of another criminal mischief offense after the day on which the
individual is convicted of the criminal mischief offense described in Subsection (4)(a)(ii)(A)
and before the day on which the individual is convicted of the domestic violence offense
described in this Subsection (4); or
(iii) commits or is convicted of the domestic violence offense described in this
Subsection (4) within 10 years after the day on which the individual is convicted of a
qualifying domestic violence offense that is not a criminal mischief offense and within five
years after the day on which the individual is convicted of a criminal mischief offense; and
(b) (i) the domestic violence offense described in this Subsection (4) is designated by
law as a class A misdemeanor; and
(ii) the individual commits or is convicted of the domestic violence offense described
in this Subsection (4):
(A) within 10 years after the day on which the individual is convicted of a qualifying
domestic violence offense that is not a criminal mischief offense; or
(B) within five years after the day on which the individual is convicted of a criminal
mischief offense.
Section 31. Section 
77-38-302
 is amended to read:
77-38-302.
Definitions.
As used in this part:
(1) "Convicted person" means a person who has been convicted of a crime.
(2) "Conviction" means an adjudication by a federal or state court resulting from a trial
or plea, including a plea of no contest, nolo contendere, a finding of not guilty due to insanity,
or not guilty but having a mental [
illness
] 
condition
 regardless of whether the sentence was
imposed or suspended.
(3) "Fund" means the Crime Victim Reparations Fund created in Section 
63M-7-526
.
(4) "Memorabilia" means any tangible property of a convicted person or a
representative or assignee of a convicted person, the value of which is enhanced by the
notoriety gained from the criminal activity for which the person was convicted.
(5) "Notoriety of crimes contract" means a contract or other agreement with a
convicted person, or a representative or assignee of a convicted person, with respect to:
(a) the reenactment of a crime in any manner including a movie, book, magazine
article, Internet website, recording, phonograph record, radio or television presentation, or live
entertainment of any kind;
(b) the expression of the convicted person's thoughts, feelings, opinions, or emotions
regarding a crime involving or causing personal injury, death, or property loss as a direct result
of the crime; or
(c) the payment or exchange of any money or other consideration or the proceeds or
profits that directly or indirectly result from the notoriety of the crime.
(6) "Office" means the Utah Office for Victims of Crime.
(7) "Profit" means any income or benefit:
(a) over and above the fair market value of tangible property that is received upon the
sale or transfer of memorabilia; or
(b) any money, negotiable instruments, securities, or other consideration received or
contracted for gain which is traceable to a notoriety of crimes contract.
Section 32. 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
.
(3) (a) "Conviction" means:
(i) a plea of:
(A) guilty;
(B) guilty with a mental [
illness
] 
condition
; or
(C) no contest; or
(ii) a judgment of:
(A) guilty; or
(B) guilty with a mental [
illness
] 
condition
.
(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
.
(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.
(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.
(7) "Department" means the Department of Corrections.
(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.
(9) "Office" means the Office of State Debt Collection created in Section 
63A-3-502
.
(10) "Party" means the prosecuting attorney, the defendant, or the department involved
in a prosecution.
(11) "Payment schedule" means the same as that term is defined in Section
77-32b-102
.
(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.
(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.
(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.
(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.
(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.
(17) "Restitution" means the payment of pecuniary damages to a victim.
(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 33. Section 
78A-2-302
 is amended to read:
78A-2-302.
Indigent litigants -- Affidavit.
(1) As used in Sections 
78A-2-302
 through 
78A-2-309
:
(a) "Convicted" means:
(i) a conviction by entry of a plea of guilty or nolo contendere, guilty with a mental
[
illness
] 
condition
, no contest; and
(ii) a conviction of any crime or offense.
(b) "Indigent" means an individual who is financially unable to pay fees and costs or
give security.
(c) "Prisoner" means an individual who has been convicted of a crime and is
incarcerated for that crime or is being held in custody for trial or sentencing.
(2) An individual may institute, prosecute, defend, or appeal any cause in a court in this
state without prepayment of fees and costs or security if the individual submits an affidavit
demonstrating that the individual is indigent.
(3) A court shall find an individual indigent if the individual's affidavit under
Subsection (2) demonstrates:
(a) the individual has an income level at or below 150% of the United States poverty
level as defined by the most recent poverty income guidelines published by the United States
Department of Health and Human Services;
(b) the individual receives benefits from a means-tested government program,
including Temporary Assistance to Needy Families, Supplemental Security Income, the
Supplemental Nutrition Assistance Program, or Medicaid;
(c) the individual receives legal services from a nonprofit provider or a pro bono
attorney through the Utah State Bar; or
(d) the individual has insufficient income or other means to pay the necessary fees and
costs or security without depriving the individual, or the individual's family, of food, shelter,
clothing, or other necessities.
(4) An affidavit demonstrating that an individual is indigent under Subsection (3)(d)
shall contain complete information on the individual's:
(a) identity and residence;
(b) amount of income, including any government financial support, alimony, or child
support;
(c) assets owned, including real and personal property;
(d) business interests;
(e) accounts receivable;
(f) securities, checking and savings account balances;
(g) debts; and
(h) monthly expenses.
(5) If the individual under Subsection (3) is a prisoner, the prisoner shall disclose the
amount of money held in the prisoner's trust account at the time the affidavit under Subsection
(2) is executed in accordance with Section 
78A-2-305
.
(6) An affidavit of indigency under this section shall state the following:
I, (insert name), do solemnly swear or affirm that due to my poverty I am unable to bear
the expenses of the action or legal proceedings which I am about to commence or the appeal
which I am about to take, and that I believe I am entitled to the relief sought by the action, legal
proceedings, or appeal.
Section 34. Section 
78B-7-901
 is amended to read:
78B-7-901.
Definitions.
As used in this part:
(1) "Conviction" means:
(a) a verdict or conviction;
(b) a plea of guilty or guilty [
and mentally ill
] 
with a mental condition
;
(c) a plea of no contest; or
(d) the acceptance by the court of a plea in abeyance.
(2) "Immediate family" means the same as that term is defined in Section 
76-5-106.5
.
Section 35. Section 
80-2-1004
 is amended to read:
80-2-1004.
Request for division removal of name from Licensing Information
System -- Petition for evidentiary hearing or substantiation.
(1) Except as provided in Subsection (2), an individual whose name is listed on the
Licensing Information System as of May 6, 2002, may at any time:
(a) request review by the division of the individual's case and removal of the
individual's name from the Licensing Information System under Subsection (3); or
(b) file a petition for substantiation and a request for a finding of unsubstantiated or
without merit in accordance with Section 
80-3-504
.
(2) Subsection (1) does not apply to an individual who has been the subject of any of
the following court determinations with respect to the alleged incident of abuse or neglect:
(a) conviction;
(b) adjudication under Section 
80-3-402
 or 
80-6-701
;
(c) plea of guilty;
(d) plea of guilty with a mental [
illness
] 
condition
; or
(e) no contest.
(3) If an alleged perpetrator listed on the Licensing Information System before May 6,
2002, requests removal of the alleged perpetrator's name from the Licensing Information
System, the division shall, within 30 days after the day on which the request is made:
(a) (i) review the case to determine whether the incident of alleged abuse or neglect
qualifies as:
(A) a severe type of child abuse or neglect;
(B) chronic abuse; or
(C) chronic neglect; and
(ii) if the alleged abuse or neglect does not qualify as a type of abuse or neglect
described in Subsections (3)(a)(i)(A) through (C), remove the alleged perpetrator's name from
the Licensing Information System; or
(b) determine whether to file a petition for substantiation in accordance with Section
80-3-504
.
Section 36. 
Revisor instructions.
The Legislature intends that the Office of Legislative Research and General Counsel, in
preparing the Utah Code database for publication, replace the terms "guilty with a mental
illness" and "guilty and mentally ill" with "guilty with a mental condition" in any new language
added to the Utah Code by legislation passed during the 2023 General Session.