77-38-11 - Enforcement -- Appellate review -- No right to money damages.
77-38-11. Enforcement -- Appellate review -- No right to money damages.
(1) If a person acting under color of state law willfully or wantonly fails to performduties so that the rights in this chapter are not provided, an action for injunctive relief, includingprospective injunctive relief, may be brought against the individual and the governmental entitythat employs the individual.
(2) (a) The victim of a crime or representative of a victim of a crime, including anyVictims' Rights Committee as defined in Section 77-37-5 may:
(i) bring an action for declaratory relief or for a writ of mandamus defining or enforcingthe rights of victims and the obligations of government entities under this chapter;
(ii) petition to file an amicus brief in any court in any case affecting crime victims; and
(iii) after giving notice to the prosecution and the defense, seek an appropriate remedyfor a violation of a victim's right from the judge assigned to the case involving the issue asprovided in Section 77-38-11.
(b) Adverse rulings on these actions or on a motion or request brought by a victim of acrime or a representative of a victim of a crime may be appealed under the rules governingappellate actions, provided that an appeal may not constitute grounds for delaying any criminal orjuvenile proceeding.
(c) An appellate court shall review all properly presented issues, including issues that arecapable of repetition but would otherwise evade review.
(3) (a) Upon a showing that the victim has not unduly delayed in seeking to protect thevictim's right, and after hearing from the prosecution and the defense, the judge shall determinewhether a right of the victim has been violated.
(b) If the judge determines that a victim's right has been violated, the judge shall proceedto determine the appropriate remedy for the violation of the victim's right by hearing from thevictim and the parties, considering all factors relevant to the issue, and then awarding anappropriate remedy to the victim. The court shall reconsider any judicial decision or judgmentaffected by a violation of the victim's right and determine whether, upon affording the victim theright and further hearing from the prosecution and the defense, the decision or judgment wouldhave been different. If the court's decision or judgment would have been different, the court shallenter the new different decision or judgment as the appropriate remedy. If necessary to protectthe victim's right, the new decision or judgment shall be entered nunc pro tunc to the time thefirst decision or judgment was reached. In no event shall the appropriate remedy be a new trial,damages, attorney fees, or costs.
(c) The appropriate remedy shall include only actions necessary to provide the victim theright to which the victim was entitled and may include reopening previously held proceedings. Subject to Subsection (3)(d), the court may reopen a sentence or a previously entered guilty or nocontest plea only if doing so would not preclude continued prosecution or sentencing thedefendant and would not otherwise permit the defendant to escape justice. Any remedy shall betailored to provide the victim an appropriate remedy without violating any constitutional right ofthe defendant.
(d) If the court sets aside a previously entered plea of guilty or no contest, and thereaftercontinued prosecution of the charge is held to be prevented by the defendant's having beenpreviously put in jeopardy, the order setting aside the plea is void and the plea is reinstated as ofthe date of its original entry.
(e) The court may not award as a remedy the dismissal of any criminal charge.
(f) The court may not award any remedy if the proceeding that the victim is challengingoccurred more than 90 days before the victim filed an action alleging the violation of the right.
(4) The failure to provide the rights in this chapter or Title 77, Chapter 37, Victims'Rights, shall not constitute cause for a judgment against the state or any government entity, orany individual employed by the state or any government entity, for monetary damages, attorneyfees, or the costs of exercising any rights under this chapter.
Amended by Chapter 331, 2010 General Session