77-18-1 - Suspension of sentence -- Pleas held in abeyance -- Probation -- Supervision -- Presentence investigation -- Standards -- Confidentiality -- Terms and conditions -- Termination, revocation,
77-18-1. Suspension of sentence -- Pleas held in abeyance -- Probation --Supervision -- Presentence investigation -- Standards -- Confidentiality -- Terms andconditions -- Termination, revocation, modification, or extension -- Hearings -- Electronicmonitoring.
(1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea inabeyance agreement, the court may hold the plea in abeyance as provided in Title 77, Chapter 2a,Pleas in Abeyance, and under the terms of the plea in abeyance agreement.
(2) (a) On a plea of guilty, guilty and mentally ill, no contest, or conviction of any crimeor offense, the court may, after imposing sentence, suspend the execution of the sentence andplace the defendant on probation. The court may place the defendant:
(i) on probation under the supervision of the Department of Corrections except in casesof class C misdemeanors or infractions;
(ii) on probation with an agency of local government or with a private organization; or
(iii) on bench probation under the jurisdiction of the sentencing court.
(b) (i) The legal custody of all probationers under the supervision of the department iswith the department.
(ii) The legal custody of all probationers under the jurisdiction of the sentencing court isvested as ordered by the court.
(iii) The court has continuing jurisdiction over all probationers.
(3) (a) The department shall establish supervision and presentence investigationstandards for all individuals referred to the department. These standards shall be based on:
(i) the type of offense;
(ii) the demand for services;
(iii) the availability of agency resources;
(iv) the public safety; and
(v) other criteria established by the department to determine what level of services shallbe provided.
(b) Proposed supervision and investigation standards shall be submitted to the JudicialCouncil and the Board of Pardons and Parole on an annual basis for review and comment prior toadoption by the department.
(c) The Judicial Council and the department shall establish procedures to implement thesupervision and investigation standards.
(d) The Judicial Council and the department shall annually consider modifications to thestandards based upon criteria in Subsection (3)(a) and other criteria as they consider appropriate.
(e) The Judicial Council and the department shall annually prepare an impact report andsubmit it to the appropriate legislative appropriations subcommittee.
(4) Notwithstanding other provisions of law, the department is not required to supervisethe probation of persons convicted of class B or C misdemeanors or infractions or to conductpresentence investigation reports on class C misdemeanors or infractions. However, thedepartment may supervise the probation of class B misdemeanants in accordance withdepartment standards.
(5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of thedefendant, continue the date for the imposition of sentence for a reasonable period of time for thepurpose of obtaining a presentence investigation report from the department or information fromother sources about the defendant.
(b) The presentence investigation report shall include a victim impact statementaccording to guidelines set in Section 77-38a-203 describing the effect of the crime on the victimand the victim's family.
(c) The presentence investigation report shall include a specific statement of pecuniarydamages, accompanied by a recommendation from the department regarding the payment ofrestitution with interest by the defendant in accordance with Title 77, Chapter 38a, CrimeVictims Restitution Act.
(d) The presentence investigation report shall include:
(i) findings from any screening and any assessment of the offender conducted underSection 77-18-1.1; and
(ii) recommendations for treatment of the offender.
(e) The contents of the presentence investigation report are protected and are notavailable except by court order for purposes of sentencing as provided by rule of the JudicialCouncil or for use by the department.
(6) (a) The department shall provide the presentence investigation report to thedefendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the courtfor review, three working days prior to sentencing. Any alleged inaccuracies in the presentenceinvestigation report, which have not been resolved by the parties and the department prior tosentencing, shall be brought to the attention of the sentencing judge, and the judge may grant anadditional 10 working days to resolve the alleged inaccuracies of the report with the department. If after 10 working days the inaccuracies cannot be resolved, the court shall make adetermination of relevance and accuracy on the record.
(b) If a party fails to challenge the accuracy of the presentence investigation report at thetime of sentencing, that matter shall be considered to be waived.
(7) At the time of sentence, the court shall receive any testimony, evidence, orinformation the defendant or the prosecuting attorney desires to present concerning theappropriate sentence. This testimony, evidence, or information shall be presented in open courton record and in the presence of the defendant.
(8) While on probation, and as a condition of probation, the court may require that thedefendant:
(a) perform any or all of the following:
(i) pay, in one or several sums, any fine imposed at the time of being placed onprobation;
(ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
(iii) provide for the support of others for whose support the defendant is legally liable;
(iv) participate in available treatment programs, including any treatment program inwhich the defendant is currently participating, if the program is acceptable to the court;
(v) serve a period of time, not to exceed one year, in a county jail designated by thedepartment, after considering any recommendation by the court as to which jail the court findsmost appropriate;
(vi) serve a term of home confinement, which may include the use of electronicmonitoring;
(vii) participate in compensatory service restitution programs, including thecompensatory service program provided in Section 76-6-107.1;
(viii) pay for the costs of investigation, probation, and treatment services;
(ix) make restitution or reparation to the victim or victims with interest in accordancewith Title 77, Chapter 38a, Crime Victims Restitution Act; and
(x) comply with other terms and conditions the court considers appropriate; and
(b) if convicted on or after May 5, 1997:
(i) complete high school classwork and obtain a high school graduation diploma, a GEDcertificate, or a vocational certificate at the defendant's own expense if the defendant has notreceived the diploma, GED certificate, or vocational certificate prior to being placed onprobation; or
(ii) provide documentation of the inability to obtain one of the items listed in Subsection(8)(b)(i) because of:
(A) a diagnosed learning disability; or
(B) other justified cause.
(9) The department shall collect and disburse the account receivable as defined bySection 76-3-201.1, with interest and any other costs assessed under Section 64-13-21 during:
(a) the parole period and any extension of that period in accordance with Subsection77-27-6(4); and
(b) the probation period in cases for which the court orders supervised probation and anyextension of that period by the department in accordance with Subsection (10).
(10) (a) (i) Probation may be terminated at any time at the discretion of the court or uponcompletion without violation of 36 months probation in felony or class A misdemeanor cases, or12 months in cases of class B or C misdemeanors or infractions.
(ii) (A) If, upon expiration or termination of the probation period under Subsection(10)(a)(i), there remains an unpaid balance upon the account receivable as defined in Section76-3-201.1, the court may retain jurisdiction of the case and continue the defendant on benchprobation for the limited purpose of enforcing the payment of the account receivable.
(B) In accordance with Section 77-18-6, the court shall record in the registry of civiljudgments any unpaid balance not already recorded and immediately transfer responsibility tocollect the account to the Office of State Debt Collection.
(iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon itsown motion, the court may require the defendant to show cause why the defendant's failure topay should not be treated as contempt of court.
(b) (i) The department shall notify the sentencing court, the Office of State DebtCollection, and the prosecuting attorney in writing in advance in all cases when termination ofsupervised probation will occur by law.
(ii) The notification shall include a probation progress report and complete report ofdetails on outstanding accounts receivable.
(11) (a) (i) Any time served by a probationer outside of confinement after having beencharged with a probation violation and prior to a hearing to revoke probation does not constituteservice of time toward the total probation term unless the probationer is exonerated at a hearingto revoke the probation.
(ii) Any time served in confinement awaiting a hearing or decision concerning revocationof probation does not constitute service of time toward the total probation term unless theprobationer is exonerated at the hearing.
(b) The running of the probation period is tolled upon the filing of a violation report withthe court alleging a violation of the terms and conditions of probation or upon the issuance of an
order to show cause or warrant by the court.
(12) (a) (i) Probation may not be modified or extended except upon waiver of a hearingby the probationer or upon a hearing and a finding in court that the probationer has violated theconditions of probation.
(ii) Probation may not be revoked except upon a hearing in court and a finding that theconditions of probation have been violated.
(b) (i) Upon the filing of an affidavit alleging with particularity facts asserted toconstitute violation of the conditions of probation, the court that authorized probation shalldetermine if the affidavit establishes probable cause to believe that revocation, modification, orextension of probation is justified.
(ii) If the court determines there is probable cause, it shall cause to be served on thedefendant a warrant for the defendant's arrest or a copy of the affidavit and an order to showcause why the defendant's probation should not be revoked, modified, or extended.
(c) (i) The order to show cause shall specify a time and place for the hearing and shall beserved upon the defendant at least five days prior to the hearing.
(ii) The defendant shall show good cause for a continuance.
(iii) The order to show cause shall inform the defendant of a right to be represented bycounsel at the hearing and to have counsel appointed if the defendant is indigent.
(iv) The order shall also inform the defendant of a right to present evidence.
(d) (i) At the hearing, the defendant shall admit or deny the allegations of the affidavit.
(ii) If the defendant denies the allegations of the affidavit, the prosecuting attorney shallpresent evidence on the allegations.
(iii) The persons who have given adverse information on which the allegations are basedshall be presented as witnesses subject to questioning by the defendant unless the court for goodcause otherwise orders.
(iv) The defendant may call witnesses, appear and speak in the defendant's own behalf,and present evidence.
(e) (i) After the hearing the court shall make findings of fact.
(ii) Upon a finding that the defendant violated the conditions of probation, the court mayorder the probation revoked, modified, continued, or that the entire probation term commenceanew.
(iii) If probation is revoked, the defendant shall be sentenced or the sentence previouslyimposed shall be executed.
(13) The court may order the defendant to commit himself to the custody of the Divisionof Substance Abuse and Mental Health for treatment at the Utah State Hospital as a condition ofprobation or stay of sentence, only after the superintendent of the Utah State Hospital or thesuperintendent's designee has certified to the court that:
(a) the defendant is appropriate for and can benefit from treatment at the state hospital;
(b) treatment space at the hospital is available for the defendant; and
(c) persons described in Subsection 62A-15-610(2)(g) are receiving priority for treatmentover the defendants described in this Subsection (13).
(14) Presentence investigation reports are classified protected in accordance with Title63G, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections63G-2-403 and 63G-2-404, the State Records Committee may not order the disclosure of apresentence investigation report. Except for disclosure at the time of sentencing pursuant to this
section, the department may disclose the presentence investigation only when:
(a) ordered by the court pursuant to Subsection 63G-2-202(7);
(b) requested by a law enforcement agency or other agency approved by the departmentfor purposes of supervision, confinement, and treatment of the offender;
(c) requested by the Board of Pardons and Parole;
(d) requested by the subject of the presentence investigation report or the subject'sauthorized representative; or
(e) requested by the victim of the crime discussed in the presentence investigation reportor the victim's authorized representative, provided that the disclosure to the victim shall includeonly information relating to statements or materials provided by the victim, to the circumstancesof the crime including statements by the defendant, or to the impact of the crime on the victim orthe victim's household.
(15) (a) The court shall consider home confinement as a condition of probation under thesupervision of the department, except as provided in Sections 76-3-406 and 76-5-406.5.
(b) The department shall establish procedures and standards for home confinement,including electronic monitoring, for all individuals referred to the department in accordance withSubsection (16).
(16) (a) If the court places the defendant on probation under this section, it may order thedefendant to participate in home confinement through the use of electronic monitoring asdescribed in this section until further order of the court.
(b) The electronic monitoring shall alert the department and the appropriate lawenforcement unit of the defendant's whereabouts.
(c) The electronic monitoring device shall be used under conditions which require:
(i) the defendant to wear an electronic monitoring device at all times; and
(ii) that a device be placed in the home of the defendant, so that the defendant'scompliance with the court's order may be monitored.
(d) If a court orders a defendant to participate in home confinement through electronicmonitoring as a condition of probation under this section, it shall:
(i) place the defendant on probation under the supervision of the Department ofCorrections;
(ii) order the department to place an electronic monitoring device on the defendant andinstall electronic monitoring equipment in the residence of the defendant; and
(iii) order the defendant to pay the costs associated with home confinement to thedepartment or the program provider.
(e) The department shall pay the costs of home confinement through electronicmonitoring only for those persons who have been determined to be indigent by the court.
(f) The department may provide the electronic monitoring described in this section eitherdirectly or by contract with a private provider.
Amended by Chapter 81, 2009 General Session