Representative Brad R. Wilson proposes the following substitute bill:




Chief Sponsor: Brad R. Wilson

Senate Sponsor: Lyle W. Hillyard


8     General Description:
9          This bill makes changes in the composition of restitution orders and the priority for
10     distribution of restitution payments.
11     Highlighted Provisions:
12          This bill:
13          ▸     includes reasonable expenses for participation in the adjudicative process as
14     pecuniary damages;
15          ▸     requires that the victim be paid first when a restitution payment is made; and
16          ▸     makes technical corrections.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          77-27-5, as last amended by Laws of Utah 2010, Chapter 110
24          77-27-6, as last amended by Laws of Utah 2005, Chapter 96
25          77-38-3, as last amended by Laws of Utah 2013, Chapters 196 and 445

26          77-38a-102, as last amended by Laws of Utah 2015, Chapter 147
27          77-38a-302, as last amended by Laws of Utah 2013, Chapter 74
28          77-38a-404, as last amended by Laws of Utah 2011, Chapters 131 and 208

31          Section 1. Section 77-27-5 is amended to read:
32          77-27-5. Board of Pardons and Parole authority.
33          (1) (a) The Board of Pardons and Parole shall determine by majority decision when and
34     under what conditions, subject to this chapter and other laws of the state, persons committed to
35     serve sentences in class A misdemeanor cases at penal or correctional facilities which are under
36     the jurisdiction of the Department of Corrections, and all felony cases except treason or
37     impeachment or as otherwise limited by law, may be released upon parole, pardoned, ordered
38     to pay restitution, or have their fines, forfeitures, or restitution remitted, or their sentences
39     commuted or terminated.
40          (b) The board may sit together or in panels to conduct hearings. The chair shall
41     appoint members to the panels in any combination and in accordance with rules promulgated
42     by the board, except in hearings involving commutation and pardons. The chair may
43     participate on any panel and when doing so is chair of the panel. The chair of the board may
44     designate the chair for any other panel.
45          (c) No restitution may be ordered, no fine, forfeiture, or restitution remitted, no parole,
46     pardon, or commutation granted or sentence terminated, except after a full hearing before the
47     board or the board's appointed examiner in open session. Any action taken under this
48     subsection other than by a majority of the board shall be affirmed by a majority of the board.
49          (d) A commutation or pardon may be granted only after a full hearing before the board.
50          (e) The board may determine restitution as provided in Section 77-27-6 and Subsection
51     77-38a-302(5)(d)[(ii)](iii)(A).
52          (2) (a) In the case of original parole grant hearings, rehearings, and parole revocation
53     hearings, timely prior notice of the time and location of the hearing shall be given to the
54     defendant, the county or district attorney's office responsible for prosecution of the case, the
55     sentencing court, law enforcement officials responsible for the defendant's arrest and
56     conviction, and whenever possible, the victim or the victim's family.

57          (b) Notice to the victim, his representative, or his family shall include information
58     provided in Section 77-27-9.5, and any related rules made by the board under that section.
59     This information shall be provided in terms that are reasonable for the lay person to
60     understand.
61          (3) Decisions of the board in cases involving paroles, pardons, commutations or
62     terminations of sentence, restitution, or remission of fines or forfeitures are final and are not
63     subject to judicial review. Nothing in this section prevents the obtaining or enforcement of a
64     civil judgment, including restitution as provided in Section 77-27-6.
65          (4) This chapter may not be construed as a denial of or limitation of the governor's
66     power to grant respite or reprieves in all cases of convictions for offenses against the state,
67     except treason or conviction on impeachment. However, respites or reprieves may not extend
68     beyond the next session of the Board of Pardons and Parole and the board, at that session, shall
69     continue or terminate the respite or reprieve, or it may commute the punishment, or pardon the
70     offense as provided. In the case of conviction for treason, the governor may suspend execution
71     of the sentence until the case is reported to the Legislature at its next session. The Legislature
72     shall then either pardon or commute the sentence, or direct its execution.
73          (5) In determining when, where, and under what conditions offenders serving sentences
74     may be paroled, pardoned, have restitution ordered, or have their fines or forfeitures remitted,
75     or their sentences commuted or terminated, the board shall consider whether the persons have
76     made or are prepared to make restitution as ascertained in accordance with the standards and
77     procedures of Section 77-38a-302, as a condition of any parole, pardon, remission of fines or
78     forfeitures, or commutation or termination of sentence.
79          (6) In determining whether parole may be terminated, the board shall consider the
80     offense committed by the parolee, the parole period as provided in Section 76-3-202, and in
81     accordance with Section 77-27-13.
82          Section 2. Section 77-27-6 is amended to read:
83          77-27-6. Payment of restitution.
84          (1) When the Board of Pardons and Parole orders the release on parole of an inmate
85     who has been sentenced to make restitution pursuant to Title 77, Chapter 38a, Crime Victims
86     Restitution Act, or whom the board has ordered to make restitution, and all or a portion of
87     restitution is still owing, the board may establish a schedule, including both complete and

88     court-ordered restitution, by which payment of the restitution shall be made, or order
89     compensatory or other service in lieu of or in combination with restitution. In fixing the
90     schedule and supervising the paroled offender's performance, the board may consider the
91     factors specified in Section 77-38a-302.
92          (2) (a) The board may impose any court order for restitution.
93          (b) In accordance with Subsection 77-38a-302(5)(d)[(ii)](iii)(A), the board may order
94     that a defendant make restitution for pecuniary damages that were not determined by the court,
95     unless the board applying the criteria as set forth in Section 77-38a-302 determines that
96     restitution is inappropriate.
97          (c) Except as provided in Subsection (2)(d), the board shall make all orders of
98     restitution within 60 days after the termination or expiration of the defendant's sentence.
99          (d) If, upon termination or expiration of a defendant's sentence, the board has
100     continuing jurisdiction over the defendant for a separate criminal offense, the board may defer
101     making an order of restitution until termination or expiration of all sentences for that
102     defendant.
103          (3) The board may also make orders of restitution for recovery of any or all costs
104     incurred by the Department of Corrections or the state or any other agency arising out of the
105     defendant's needs or conduct.
106          (4) If the defendant, upon termination or expiration of the sentence owes outstanding
107     fines, restitution, or other assessed costs, or if the board makes an order of restitution within 60
108     days after the termination or expiration of the defendant's sentence, the matter shall be referred
109     to the district court for civil collection remedies. The Board of Pardons and Parole shall
110     forward a restitution order to the sentencing court to be entered on the judgment docket. The
111     entry shall constitute a lien and is subject to the same rules as a judgment for money in a civil
112     judgment.
113          Section 3. Section 77-38-3 is amended to read:
114          77-38-3. Notification to victims -- Initial notice, election to receive subsequent
115     notices -- Form of notice -- Protected victim information -- Pretrial criminal no contact
116     order.
117          (1) Within seven days of the filing of felony criminal charges against a defendant, the
118     prosecuting agency shall provide an initial notice to reasonably identifiable and locatable

119     victims of the crime contained in the charges, except as otherwise provided in this chapter.
120          (2) The initial notice to the victim of a crime shall provide information about electing
121     to receive notice of subsequent important criminal justice hearings listed in Subsections
122     77-38-2(5)(a) through (f) and rights under this chapter.
123          (3) The prosecuting agency shall provide notice to a victim of a crime:
124          (a) for the important criminal justice hearings, provided in Subsections 77-38-2(5)(a)
125     through (f), which the victim has requested[.]; and
126          (b) for restitution requests to be submitted as provided in Subsection 77-38a-302(5)(d).
127          (4) (a) The responsible prosecuting agency may provide initial and subsequent notices
128     in any reasonable manner, including telephonically, electronically, orally, or by means of a
129     letter or form prepared for this purpose.
130          (b) In the event of an unforeseen important criminal justice hearing, listed in
131     Subsections 77-38-2(5)(a) through (f) for which a victim has requested notice, a good faith
132     attempt to contact the victim by telephone shall be considered sufficient notice, provided that
133     the prosecuting agency subsequently notifies the victim of the result of the proceeding.
134          (5) (a) The court shall take reasonable measures to ensure that its scheduling practices
135     for the proceedings provided in Subsections 77-38-2(5)(a) through (f) permit an opportunity for
136     victims of crimes to be notified.
137          (b) The court shall also consider whether any notification system it might use to
138     provide notice of judicial proceedings to defendants could be used to provide notice of those
139     same proceedings to victims of crimes.
140          (6) A defendant or, if it is the moving party, Adult Probation and Parole, shall give
141     notice to the responsible prosecuting agency of any motion for modification of any
142     determination made at any of the important criminal justice hearings provided in Subsections
143     77-38-2(5)(a) through (f) in advance of any requested court hearing or action so that the
144     prosecuting agency may comply with its notification obligation.
145          (7) (a) Notice to a victim of a crime shall be provided by the Board of Pardons and
146     Parole for the important criminal justice hearing provided in Subsection 77-38-2(5)(g).
147          (b) The board may provide notice in any reasonable manner, including telephonically,
148     electronically, orally, or by means of a letter or form prepared for this purpose.
149          (8) Prosecuting agencies and the Board of Pardons and Parole are required to give

150     notice to a victim of a crime for the proceedings provided in Subsections 77-38-2(5)(a) through
151     (f) only where the victim has responded to the initial notice, requested notice of subsequent
152     proceedings, and provided a current address and telephone number if applicable.
153          (9) (a) Law enforcement and criminal justice agencies shall refer any requests for
154     notice or information about crime victim rights from victims to the responsible prosecuting
155     agency.
156          (b) In a case in which the Board of Pardons and Parole is involved, the responsible
157     prosecuting agency shall forward any request for notice it has received from a victim to the
158     Board of Pardons and Parole.
159          (10) In all cases where the number of victims exceeds 10, the responsible prosecuting
160     agency may send any notices required under this chapter in its discretion to a representative
161     sample of the victims.
162          (11) (a) A victim's address, telephone number, and victim impact statement maintained
163     by a peace officer, prosecuting agency, Youth Parole Authority, Division of Juvenile Justice
164     Services, Department of Corrections, and Board of Pardons and Parole, for purposes of
165     providing notice under this section, is classified as protected as provided in Subsection
166     63G-2-305(10).
167          (b) The victim's address, telephone number, and victim impact statement is available
168     only to the following persons or entities in the performance of their duties:
169          (i) a law enforcement agency, including the prosecuting agency;
170          (ii) a victims' right committee as provided in Section 77-37-5;
171          (iii) a governmentally sponsored victim or witness program;
172          (iv) the Department of Corrections;
173          (v) the Utah Office for Victims of Crime;
174          (vi) the Commission on Criminal and Juvenile Justice; and
175          (vii) the Board of Pardons and Parole.
176          (12) The notice provisions as provided in this section do not apply to misdemeanors as
177     provided in Section 77-38-5 and to important juvenile justice hearings as provided in Section
178     77-38-2.
179          (13) (a) When a defendant is charged with a felony crime under Sections 76-5-301
180     through 76-5-310 regarding kidnapping, human trafficking, and human smuggling; Sections

181     76-5-401 through 76-5-413 regarding sexual offenses; or Section 76-10-1306 regarding
182     aggravated exploitation of prostitution, the court may, during any court hearing where the
183     defendant is present, issue a pretrial criminal no contact order:
184          (i) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
185     communicating with the victim directly or through a third party;
186          (ii) ordering the defendant to stay away from the residence, school, place of
187     employment of the victim, and the premises of any of these, or any specified place frequented
188     by the victim or any designated family member of the victim directly or through a third party;
189     and
190          (iii) ordering any other relief that the court considers necessary to protect and provide
191     for the safety of the victim and any designated family or household member of the victim.
192          (b) Violation of a pretrial criminal no contact order issued pursuant to this section is a
193     third degree felony.
194          (c) (i) The court shall provide to the victim a certified copy of any pretrial criminal no
195     contact order that has been issued if the victim can be located with reasonable effort.
196          (ii) The court shall also transmit the pretrial criminal no contact order to the statewide
197     domestic violence network in accordance with Section 78B-7-113.
198          Section 4. Section 77-38a-102 is amended to read:
199          77-38a-102. Definitions.
200          As used in this chapter:
201          (1) "Conviction" includes a:
202          (a) judgment of guilt;
203          (b) a plea of guilty; or
204          (c) a plea of no contest.
205          (2) "Criminal activities" means:
206          (a) any offense of which the defendant is convicted; or
207          (b) any other criminal conduct for which the defendant admits responsibility to the
208     sentencing court with or without an admission of committing the criminal conduct.
209          (3) "Department" means the Department of Corrections.
210          (4) "Diversion" means suspending criminal proceedings prior to conviction on the
211     condition that a defendant agree to participate in a rehabilitation program, make restitution to

212     the victim, or fulfill some other condition.
213          (5) "Party" means the prosecutor, defendant, or department involved in a prosecution.
214          (6) "Pecuniary damages" means all demonstrable economic injury, whether or not yet
215     incurred, including those which a person could recover in a civil action arising out of the facts
216     or events constituting the defendant's criminal activities and includes the fair market value of
217     property taken, destroyed, broken, or otherwise harmed, and losses including lost earnings,
218     including those and other travel expenses reasonably incurred as a result of participation in
219     criminal proceedings, and medical and other expenses, but excludes punitive or exemplary
220     damages and pain and suffering.
221          (7) "Plea agreement" means an agreement entered between the prosecution and
222     defendant setting forth the special terms and conditions and criminal charges upon which the
223     defendant will enter a plea of guilty or no contest.
224          (8) "Plea disposition" means an agreement entered into between the prosecution and
225     defendant including diversion, plea agreement, plea in abeyance agreement, or any agreement
226     by which the defendant may enter a plea in any other jurisdiction or where charges are
227     dismissed without a plea.
228          (9) "Plea in abeyance" means an order by a court, upon motion of the prosecution and
229     the defendant, accepting a plea of guilty or of no contest from the defendant but not, at that
230     time, entering judgment of conviction against him nor imposing sentence upon him on
231     condition that he comply with specific conditions as set forth in a plea in abeyance agreement.
232          (10) "Plea in abeyance agreement" means an agreement entered into between the
233     prosecution and the defendant setting forth the specific terms and conditions upon which,
234     following acceptance of the agreement by the court, a plea may be held in abeyance.
235          (11) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
236     victim, including prejudgment interest, the accrual of interest from the time of sentencing,
237     insured damages, reimbursement for payment of a reward, and payment for expenses to a
238     governmental entity for extradition or transportation and as may be further defined by law.
239          (12) (a) "Reward" means a sum of money:
240          (i) offered to the public for information leading to the arrest and conviction of an
241     offender; and
242          (ii) that has been paid to a person or persons who provide this information, except that

243     the person receiving the payment may not be a codefendant, an accomplice, or a bounty hunter.
244          (b) "Reward" does not include any amount paid in excess of the sum offered to the
245     public.
246          (13) "Screening" means the process used by a prosecuting attorney to terminate
247     investigative action, proceed with prosecution, move to dismiss a prosecution that has been
248     commenced, or cause a prosecution to be diverted.
249          (14) (a) "Victim" means any person or entity, including the Utah Office for Victims of
250     Crime, who the court determines has suffered pecuniary damages as a result of the defendant's
251     criminal activities.
252          (b) "Victim" may not include a codefendant or accomplice.
253          Section 5. Section 77-38a-302 is amended to read:
254          77-38a-302. Restitution criteria.
255          (1) When a defendant is convicted of criminal activity that has resulted in pecuniary
256     damages, in addition to any other sentence it may impose, the court shall order that the
257     defendant make restitution to victims of crime as provided in this chapter, or for conduct for
258     which the defendant has agreed to make restitution as part of a plea disposition. For purposes
259     of restitution, a victim has the meaning as defined in Subsection 77-38a-102(14) and in
260     determining whether restitution is appropriate, the court shall follow the criteria and procedures
261     as provided in Subsections (2) through (5).
262          (2) In determining restitution, the court shall determine complete restitution and
263     court-ordered restitution.
264          (a) "Complete restitution" means restitution necessary to compensate a victim for all
265     losses caused by the defendant.
266          (b) "Court-ordered restitution" means the restitution the court having criminal
267     jurisdiction orders the defendant to pay as a part of the criminal sentence [at the time of
268     sentencing or within one year after sentencing].
269          (c) Complete restitution and court-ordered restitution shall be determined as provided
270     in Subsection (5).
271          (3) If the court determines that restitution is appropriate or inappropriate under this
272     part, the court shall make the reasons for the decision part of the court record.
273          (4) If the defendant objects to the imposition, amount, or distribution of the restitution,

274     the court shall allow the defendant a full hearing on the issue.
275          (5) (a) For the purpose of determining restitution for an offense, the offense shall
276     include any criminal conduct admitted by the defendant to the sentencing court or to which the
277     defendant agrees to pay restitution. A victim of an offense that involves as an element a
278     scheme, a conspiracy, or a pattern of criminal activity, includes any person directly harmed by
279     the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.
280          (b) In determining the monetary sum and other conditions for complete restitution, the
281     court shall consider all relevant facts, including:
282          (i) the cost of the damage or loss if the offense resulted in damage to or loss or
283     destruction of property of a victim of the offense;
284          (ii) the cost of necessary medical and related professional services and devices relating
285     to physical or mental health care, including nonmedical care and treatment rendered in
286     accordance with a method of healing recognized by the law of the place of treatment;
287          (iii) the cost of necessary physical and occupational therapy and rehabilitation;
288          (iv) the income lost by the victim as a result of the offense [if the offense resulted in
289     bodily injury to a victim];
290          (v) [up to five days of] the individual victim's reasonable determinable wages that are
291     lost due to theft of or damage to tools or equipment items of a trade that were owned by the
292     victim and were essential to the victim's current employment at the time of the offense; and
293          (vi) the cost of necessary funeral and related services if the offense resulted in the death
294     of a victim.
295          (c) In determining the monetary sum and other conditions for court-ordered restitution,
296     the court shall consider:
297          (i) the factors listed in Subsections (5)(a) and (b);
298          (ii) the financial resources of the defendant, as disclosed in the financial declaration
299     described in Section 77-38a-204;
300          (iii) the burden that payment of restitution will impose, with regard to the other
301     obligations of the defendant;
302          (iv) the ability of the defendant to pay restitution on an installment basis or on other
303     conditions to be fixed by the court;
304          (v) the rehabilitative effect on the defendant of the payment of restitution and the

305     method of payment; and
306          (vi) other circumstances that the court determines may make restitution inappropriate.
307          [(d) (i) Except as provided in Subsection (5)(d)(ii), the court shall determine complete
308     restitution and court-ordered restitution, and shall make all restitution orders at the time of
309     sentencing if feasible, otherwise within one year after sentencing.]
310          (d) (i) The prosecuting agency shall submit all requests for complete restitution and
311     court ordered restitution to the court at the time of sentencing if feasible, otherwise within one
312     year after sentencing.
313          (ii) If a defendant is placed on probation pursuant to Section 77-18-1:
314          (A) the court shall determine complete restitution and court ordered restitution; and
315          (B) the time period for determination of complete restitution and court ordered
316     restitution may be extended by the court upon a finding of good cause, but may not exceed the
317     period of the probation term served by the defendant.
318          (iii) If the defendant is committed to prison:
319          [(ii) Any] (A) any pecuniary damages that have not been determined by the court
320     within one year after sentencing may be determined by the Board of Pardons and Parole[.]; and
321          [(e) The] (B) the Board of Pardons and Parole may, within one year after sentencing,
322     refer an order of judgment and commitment back to the court for determination of restitution.
323          Section 6. Section 77-38a-404 is amended to read:
324          77-38a-404. Priority.
325          (1) Restitution payments made pursuant to a court order shall be disbursed to victims
326     within 60 days of receipt from the defendant by the court or department provided:
327          (a) the victim has complied with Subsection 77-38a-203(1)(b);
328          (b) if the defendant has tendered a negotiable instrument, funds from the financial
329     institution are actually received; and
330          (c) the payment to the victim is at least $5, unless the payment is the final payment.
331          (2) If restitution to more than one person, agency, or entity is required at the same time,
332     the department shall establish the following priorities of payment, except as provided in
333     Subsection (4):
334          (a) the crime victim;
335          (b) the Utah Office for Victims of Crime;

336          (c) any other government agency which has provided reimbursement to the victim as a
337     result of the offender's criminal conduct;
338          (d) the person, entity, or governmental agency that has offered and paid a reward under
339     Section 76-3-201.1 or 78A-6-117;
340          (e) any insurance company which has provided reimbursement to the victim as a result
341     of the offender's criminal conduct; and
342          (f) any county correctional facility to which the defendant is required to pay restitution
343     under Subsection 76-3-201(6).
344          (3) Restitution ordered under Subsection (2)(f) is paid after criminal fines and
345     surcharges are paid.
346          (4) If the offender is required under Section 53-10-404 to reimburse the department for
347     the cost of obtaining the offender's DNA specimen, this reimbursement is the next priority after
348     restitution to the crime victim under Subsection (2)(a).
349          (5) All money collected for court-ordered obligations from offenders by the department
350     will be applied:
351          (a) first, to victim restitution[, except the];
352          (b) second, to any current and past due amount of $30 per month required to be
353     collected by the department under Section 64-13-21, if applicable; and
354          [(b) second] (c) third, if applicable, to the cost of obtaining a DNA specimen under
355     Subsection (4).
356          (6) Restitution owed to more than one victim shall be disbursed to each victim
357     according to the percentage of each victim's share of the total restitution order.