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[Utah Code Table of Contents]
[TITLE 77. Table of Contents]
77-18-1 Suspension of sentence - Pleas held in abeyance - Probation - Supervision - Presentence investigation - Standards - Confidentiality - Terms and conditions - Termination, revocation, modification, or extension - Hearings - Electronic monitoring.
(1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea in abeyance 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 crime or offense, the court may, after imposing sentence, suspend the execution of the sentence and place the defendant on probation. The court may place the defendant:
(i) on probation under the supervision of the Department of Corrections except in cases of 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 is with the department.
(ii) The legal custody of all probationers under the jurisdiction of the sentencing court is vested as ordered by the court.
(iii) The court has continuing jurisdiction over all probationers.
(3) (a) The department shall establish supervision and presentence investigation standards 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 shall be provided.
(b) Proposed supervision and investigation standards shall be submitted to the Judicial Council and the Board of Pardons and Parole on an annual basis for review and comment prior to adoption by the department.
(c) The Judicial Council and the department shall establish procedures to implement the supervision and investigation standards.
(d) The Judicial Council and the department shall annually consider modifications to the standards 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 and submit it to the appropriate legislative appropriations subcommittee.
(4) Notwithstanding other provisions of law, the department is not required to supervise the probation of persons convicted of class B or C misdemeanors or infractions or to conduct presentence investigation reports on class C misdemeanors or infractions. However, the department may supervise the probation of class B misdemeanants in accordance with department standards.
(5) (a) Prior to the imposition of any sentence, the court may, with the concurrence of the defendant, continue the date for the imposition of sentence for a reasonable period of time for the purpose of obtaining a presentence investigation report from the department or information from other sources about the defendant.
(b) The presentence investigation report shall include a victim impact statement according to guidelines set in Section 77-38a-203 describing the effect of the crime on the victim and the victim's family.
(c) The presentence investigation report shall include a specific statement of pecuniary damages, accompanied by a recommendation from the department regarding the payment of restitution with interest by the defendant in accordance with Title 77, Chapter 38a, Crime Victims Restitution Act.
(d) The contents of the presentence investigation report, including any diagnostic evaluation report ordered by the court under Section 76-3-404 , are protected and are not available except by court order for purposes of sentencing as provided by rule of the Judicial Council or for use by the department.
(6) (a) The department shall provide the presentence investigation report to the defendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review, three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation report, which have not been resolved by the parties and the department prior to sentencing, shall be brought to the attention of the sentencing judge, and the judge may grant an additional ten working days to resolve the alleged inaccuracies of the report with the department. If after ten working days the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy on the record.
(b) If a party fails to challenge the accuracy of the presentence investigation report at the time of sentencing, that matter shall be considered to be waived.
(7) At the time of sentence, the court shall receive any testimony, evidence, or information the defendant or the prosecuting attorney desires to present concerning the appropriate sentence. This testimony, evidence, or information shall be presented in open court on record and in the presence of the defendant.
(8) While on probation, and as a condition of probation, the court may require that the defendant:
(a) perform any or all of the following:
(i) pay, in one or several sums, any fine imposed at the time of being placed on probation;
(ii) pay amounts required under Title 77, Chapter 32a, Defense Costs;
(iii) provide for the support of others for whose support he is legally liable;
(iv) participate in available treatment programs;
(v) serve a period of time, not to exceed one year, in a county jail designated by the department, after considering any recommendation by the court as to which jail the court finds most appropriate;
(vi) serve a term of home confinement, which may include the use of electronic monitoring;
(vii) participate in compensatory service restitution programs, including the compensatory service program provided in Section 78-11-20.7 ;
(viii) pay for the costs of investigation, probation, and treatment services;
(ix) make restitution or reparation to the victim or victims with interest in accordance with 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 GED certificate, or a vocational certificate at the defendant's own expense if the defendant has not received the diploma, GED certificate, or vocational certificate prior to being placed on probation; 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 by Section 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 Subsection 77-27-6 (4); and
(b) the probation period in cases for which the court orders supervised probation and any extension 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 upon completion without violation of 36 months probation in felony or class A misdemeanor cases, or 12 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 Section 76-3-201.1 , the court may retain jurisdiction of the case and continue the defendant on bench probation 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 civil judgments any unpaid balance not already recorded and immediately transfer responsibility to collect the account to the Office of State Debt Collection.
(iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its own motion, the court may require the defendant to show cause why his failure to pay should not be treated as contempt of court.
(b) (i) The department shall notify the sentencing court, the Office of State Debt Collection, and the prosecuting attorney in writing in advance in all cases when termination of supervised probation will occur by law.
(ii) The notification shall include a probation progress report and complete report of details on outstanding accounts receivable.
(11) (a) (i) Any time served by a probationer outside of confinement after having been charged with a probation violation and prior to a hearing to revoke probation does not constitute service of time toward the total probation term unless the probationer is exonerated at a hearing to revoke the probation.
(ii) Any time served in confinement awaiting a hearing or decision concerning revocation of probation does not constitute service of time toward the total probation term unless the probationer is exonerated at the hearing.
(b) The running of the probation period is tolled upon the filing of a violation report with the 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 hearing by the probationer or upon a hearing and a finding in court that the probationer has violated the conditions of probation.
(ii) Probation may not be revoked except upon a hearing in court and a finding that the conditions of probation have been violated.
(b) (i) Upon the filing of an affidavit alleging with particularity facts asserted to constitute violation of the conditions of probation, the court that authorized probation shall determine if the affidavit establishes probable cause to believe that revocation, modification, or extension of probation is justified.
(ii) If the court determines there is probable cause, it shall cause to be served on the defendant a warrant for his arrest or a copy of the affidavit and an order to show cause why his 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 be served 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 by counsel at the hearing and to have counsel appointed for him if he 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 shall present evidence on the allegations.
(iii) The persons who have given adverse information on which the allegations are based shall be presented as witnesses subject to questioning by the defendant unless the court for good cause otherwise orders.
(iv) The defendant may call witnesses, appear and speak in his 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 may order the probation revoked, modified, continued, or that the entire probation term commence anew.
(iii) If probation is revoked, the defendant shall be sentenced or the sentence previously imposed shall be executed.
(13) The court may order the defendant to commit himself 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, only after the superintendent of the Utah State Hospital or his 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 treatment over the defendants described in this Subsection (13).
(14) Presentence investigation reports, including presentence diagnostic evaluations, are classified protected in accordance with Title 63, Chapter 2, Government Records Access and Management Act. Notwithstanding Sections 63-2-403 and 63-2-404 , the State Records Committee may not order the disclosure of a presentence 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 63-2-202 (7);
(b) requested by a law enforcement agency or other agency approved by the department for 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's authorized representative; or
(e) requested by the victim of the crime discussed in the presentence investigation report or the victim's authorized representative, provided that the disclosure to the victim shall include only information relating to statements or materials provided by the victim, to the circumstances of the crime including statements by the defendant, or to the impact of the crime on the victim or the victim's household.
(15) (a) The court shall consider home confinement as a condition of probation under the supervision 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 with Subsection (16).
(16) (a) If the court places the defendant on probation under this section, it may order the defendant to participate in home confinement through the use of electronic monitoring as described in this section until further order of the court.
(b) The electronic monitoring shall alert the department and the appropriate law enforcement 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's compliance with the court's order may be monitored.
(d) If a court orders a defendant to participate in home confinement through electronic monitoring as a condition of probation under this section, it shall:
(i) place the defendant on probation under the supervision of the Department of Corrections;
(ii) order the department to place an electronic monitoring device on the defendant and install electronic monitoring equipment in the residence of the defendant; and
(iii) order the defendant to pay the costs associated with home confinement to the department or the program provider.
(e) The department shall pay the costs of home confinement through electronic monitoring 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 either directly or by contract
with a private provider.
2003
77-18-3 Disposition of fines.
Fines imposed by the district court shall be paid as provided
in Section
78-3-14.5
.
1996
77-18-4 Sentence - Term - Construction.
(1) Whenever a person is convicted of a crime and the judgment provides for a commitment to the state prison, the court shall not fix a definite term of imprisonment unless otherwise provided by law.
(2) The sentence and judgment of imprisonment shall be for an indeterminate term of not less than the minimum and not to exceed the maximum term provided by law for the particular crime.
(3) Except as otherwise expressly provided by law, every
sentence, regardless of its form or terms, which purports
to be for a shorter or different period of time, shall be
construed to be a sentence for the term between the minimum
and maximum periods of time provided by law and shall continue
until the maximum period has been reached unless sooner terminated
or commuted by authority of the Board of Pardons and Parole.
1994
77-18-5 Reports by courts and prosecuting attorneys to Board of Pardons and Parole.
In cases where an indeterminate sentence is imposed, the
judge and prosecuting attorney may, within 30 days, mail
a statement to the Board of Pardons and Parole setting forth
the term for which the prisoner ought to be imprisoned together
with any information which might aid the board in passing
on the application for termination or commutation of the
sentence or for parole or pardon.
1994
77-18-5.5 Judgment of death - Defendant to select method - Time of selection.
When a person is convicted of a capital felony and the
judgment of death has been imposed, the defendant is entitled
to select, at the time of sentencing, either a firing squad
or a lethal intravenous injection as the method of execution.
If the defendant does not indicate a preference at that time
to the court, the judgment of death shall be executed by
lethal intravenous injection.
2001
77-18-6 Judgment to pay fine or restitution constitutes a lien.
(1) (a) In cases not supervised by the Department of Corrections, the clerk of the district court shall:
(i) transfer the responsibility to collect past due accounts receivable to the Office of State Debt Collection when the accounts receivable are 90 days or more past due; and
(ii) before transferring the responsibility to collect the past due account receivable to the Office of State Debt Collection, record each judgment of conviction of a crime that orders the payment of a fine, forfeiture, surcharge, cost permitted by statute, or fee in the registry of civil judgments, listing the Office of State Debt Collection as the judgment creditor.
(b) (i) The clerk of court shall record each judgment of conviction that orders the payment of restitution to a victim in the registry of civil judgments, listing the victim, or the estate of the victim, as the judgment creditor.
(ii) The Department of Corrections shall collect the judgment on behalf of the victim as provided in Subsection 77-18-1 (9).
(iii) The court shall collect the judgment on behalf of the victim as provided in Subsection 78-7-33 (2).
(iv) The victim may collect the judgment.
(v) The victim is responsible for timely renewal of the judgment under Section 78-22-1 .
(2) When a fine, forfeiture, surcharge, cost, fee, or restitution is recorded in the registry of civil judgments, the judgment:
(a) constitutes a lien;
(b) has the same effect and is subject to the same rules as a judgment for money in a civil action; and
(c) may be collected by any means authorized by law for
the collection of a civil judgment.
2002
77-18-6.5 Liability of rescued person for costs of emergency response.
(1) Any person who violates Section 76-6-206.1 whose conduct required emergency care, rescue, assistance, or recovery services at the scene of an abandoned or inactive mine may be charged with the expenses incurred in meeting the emergency.
(2) The court's order shall be a judgment which orders the payment of reimbursement to any public agency or private body that incurred the expenses. The judgment shall constitute a lien when recorded in the judgment docket and shall have the same effect and is subject to the same rules as a judgment for money in a civil action.
(3) The liability imposed under this section is in addition
to and not in limitation of any other liability that may
be imposed.
1997
77-18-7 Costs imposed on defendant - Restrictions.
Unless specifically authorized by statute, a defendant
shall not be required to pay court costs in a criminal case
either as a part of a sentence or as a condition of probation
or dismissal.
1980
77-18-8 Fine not paid - Commitment.
When a defendant is sentenced to pay a fine in addition
to a jail or a prison sentence and the judgment is that the
jail or prison sentence be suspended upon payment of the
fine, the service of the jail or prison sentence shall satisfy
the judgment. If a defendant fails to pay the fine and thereafter
the court finds that the defendant failed to make a good
faith effort to pay the fine, the court may, after a hearing,
order the execution of the suspended jail or prison sentence.
If a defendant is sentenced to pay a fine only or is sentenced
to jail or prison and a fine, with neither suspended, he
shall not later be committed to jail for failure to pay the
fine.
1980
77-18-8.3 Special condition of sentence during incarceration - Penalty.
(1) At the time of sentence, the court 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 court's 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 court 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 court 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 court's order may be found to be contempt.
(5) The Department of Corrections shall notify the attorney general of any alleged violation of the court's order under this section.
(6) The Board of Pardons and Parole and any county jail administrator may consider the court's finding in any incarceration release decision concerning the incarcerated defendant.
(7) For purposes of this section:
(a) "convicted" means a conviction by entry of a plea of guilty or nolo contendere, guilty and mentally ill, 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.
1996
77-18-8.5 Special condition of probation - Penalty.
(1) In accordance with Subsections 77-18-1 (2) and (8), the court may place the defendant on probation and as a condition of probation, the court 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 court's 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 court 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 court 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 court's order shall be found to be in contempt.
(5) Adult Probation and Parole shall notify the attorney general of any alleged violation of the court's order under this section.
(6) The violation of the court's order shall be considered a violation of probation.
(7) For purposes of this section:
(a) "convicted" means a conviction by entry of a plea of guilty or nolo contendere, guilty and mentally ill, 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.
1996
77-18-9 Definitions.
As used in this chapter:
(1) "Administrative finding" means a decision upon a question of fact reached by an administrative agency following an administrative hearing or other procedure satisfying the requirements of due process.
(2) "Certificate of eligibility" means a document issued by the division stating that the criminal record which is the subject of a petition for expungement is eligible for expungement.
(3) "Conviction" means judgment by a criminal court on a verdict or finding of guilty after trial, a plea of guilty, or a plea of nolo contendere.
(4) "Division" means the Criminal Investigations and Technical Services Division of the Department of Public Safety established in Section 53-10-103 .
(5) "Expungement" means the sealing or destruction of a criminal record, including records of the investigation, arrest, detention, or conviction of the petitioner.
(6) "Jurisdiction" means an area of authority.
(7) "Petitioner" means a person seeking expungement under this chapter.
(8) Second degree forcible felony includes:
(a) aggravated assault, if the person intentionally causes serious bodily injury;
(b) aggravated assault by a prisoner;
(c) aggravated assault on school premises;
(d) intentional child abuse;
(e) criminally negligent automobile homicide;
(f) reckless child abuse homicide;
(g) mayhem;
(h) manslaughter;
(i) kidnaping;
(j) forcible sexual abuse;
(k) robbery;
(l) felony fleeing causing death or serious bodily injury; or
(m) delivery of an explosive to a common carrier.
1999
77-18-10 Petition - Expungement of records of arrest, investigation, and detention - Eligibility conditions - No filing fee.
(1) A person who has been arrested with or without a warrant may petition the court in which the proceeding occurred or, if there were no court proceedings, any court in the jurisdiction where the arrest occurred, for an order expunging any and all records of arrest, investigation, and detention which may have been made in the case, subject to the following conditions:
(a) at least 30 days have passed since the arrest for which expungement is sought;
(b) there have been no intervening arrests; and
(c) one of the following occurred:
(i) the person was released without the filing of formal charges;
(ii) proceedings against the person were dismissed;
(iii) the person was discharged without a conviction and no charges were refiled within 30 days;
(iv) the person was acquitted at trial; or
(v) the record of any proceedings against the person has been sealed.
(2) (a) A person seeking expungement under Subsection (1) may petition the court for expungement before the expiration of the 30 days required by Subsection (1)(a) if he believes extraordinary circumstances exist and the court orders the division to proceed with the eligibility process.
(b) A court may, with the receipt of a certificate of eligibility, order expungement if the court finds that the petitioner is eligible for relief under this subsection and in the interest of justice the order should be issued prior to the expiration of the 30-day period required by Subsection (1)(a).
(3) As provided in Subsection 78-7-35 (1)(i), there is no fee for a petition filed under Subsection (2).
(4) The petitioner shall file a certificate of eligibility issued by the division to be reviewed by the prosecuting attorney and the court prior to issuing an order granting the expungement.
(5) If the court finds that the petitioner is eligible for relief under this section, it shall issue an order granting the expungement.
(6) No filing fees or other administrative charges shall be assessed against a successful petitioner under this section.
(7) A person who has received expungement of an arrest
under this section may respond to any inquiry as though the
arrest did not occur, unless otherwise provided by law.
2001
77-18-11 Petition - Expungement of conviction - Certificate of eligibility - Fee - Notice - Written evaluation - Objections - Hearing.
(1) A person convicted of a crime may petition the convicting court for an expungement of the record of conviction.
(2) (a) The court shall require receipt of a certificate of eligibility issued by the division under Section 77-18-12 .
(b) The fee for each certificate of eligibility is $25. This fee remains in effect until changed by the division through the process under Section 63-38-3.2 .
(c) Funds generated under Subsection (2)(b) shall be deposited in the General Fund as a dedicated credit by the department to cover the costs incurred in providing the information.
(3) The petition and certificate of eligibility shall be filed with the court and served upon the prosecuting attorney and the Department of Corrections.
(4) A victim shall receive notice of a petition for expungement if, prior to the entry of an expungement order, the victim or, in the case of a minor or a person who is incapacitated or deceased, the victim's next of kin or authorized representative, submits a written and signed request for notice to the office of the Department of Corrections in the judicial district in which the crime occurred or judgment was entered.
(5) The Department of Corrections shall serve notice of the expungement request by first-class mail to the victim at the most recent address of record on file with the department. The notice shall include a copy of the petition, certificate of eligibility, and statutes and rules applicable to the petition.
(6) The court in its discretion may request a written evaluation by Adult Parole and Probation of the Department of Corrections.
(a) The evaluation shall include a recommendation concerning the petition for expungement.
(b) If expungement is recommended, the evaluation shall include certification that the petitioner has completed all requirements of sentencing and probation or parole and state any rationale that would support or refute consideration for expungement.
(c) The conclusions and recommendations contained in the evaluation shall be provided to the petitioner and the prosecuting attorney.
(7) If the prosecuting attorney or a victim submits a written objection to the court concerning the petition within 30 days after service of the notice, or if the petitioner objects to the conclusions and recommendations in the evaluation within 15 days after receipt of the conclusions and recommendations, the court shall set a date for a hearing and notify the prosecuting attorney for the jurisdiction, the petitioner, and the victim of the date set for the hearing.
(8) Any person who has relevant information about the petitioner may testify at the hearing.
(9) The prosecuting attorney may respond to the court with a recommendation or objection within 30 days.
(10) If an objection is not received under Subsection (7), the expungement may be granted without a hearing.
(11) A court may not expunge a conviction of a:
(a) capital felony;
(b) first degree felony;
(c) second degree forcible felony; or
(d) any sexual act against a minor.
1999
77-18-12 Grounds for denial of certificate of eligibility - Effect of prior convictions.
(1) The division shall issue a certificate of eligibility to a petitioner seeking to obtain expungement for a criminal record unless prior to issuing a certificate of eligibility the division finds, through records of a governmental agency, including national criminal data bases that:
(a) the conviction for which expungement is sought is a capital felony, first degree felony, second degree forcible felony, a conviction involving a sexual act against a minor, any registerable sex offense as defined in Subsection 77-27-21.5 (1)(d), or an attempt, solicitation, or conspiracy to commit any offense listed in that subsection;
(b) the petitioner's record includes two or more convictions for any type of offense which would be classified as a felony under Utah law, not arising out of a single criminal episode, regardless of the jurisdiction in which the convictions occurred;
(c) the petitioner has previously obtained expungement in any jurisdiction of a crime which would be classified as a felony in Utah;
(d) the petitioner has previously obtained expungement in any jurisdiction of two or more convictions which would be classified as misdemeanors in Utah unless the convictions would be classified as class B or class C misdemeanors in Utah and 15 years have passed since these misdemeanor convictions;
(e) the petitioner was convicted in any jurisdiction, subsequent to the conviction for which expungement is sought and within the time periods as provided in Subsection (2), of a crime which would be classified in Utah as a felony, misdemeanor, or infraction;
(f) the person has a combination of three or more convictions not arising out of a single criminal episode including any conviction for an offense which would be classified under Utah law as a class B or class A misdemeanor or as a felony, including any misdemeanor and felony convictions previously expunged, regardless of the jurisdiction in which the conviction or expungement occurred; or
(g) a proceeding involving a crime is pending or being instituted in any jurisdiction against the petitioner.
(2) A conviction may not be included for purposes of Subsection (1)(e), and a conviction may not be considered for expungement until, after the petitioner's release from incarceration, parole, or probation, whichever occurs last and all fines ordered by the court have been satisfied, at least the following period of time has elapsed:
(a) seven years in the case of a felony;
(b) ten years in the case of an alcohol or drug-related traffic offense under Title 41, Motor Vehicles;
(c) five years in the case of a class A misdemeanor;
(d) three years in the case of any other misdemeanor or infraction under Title 76, Utah Criminal Code; or
(e) 15 years in the case of multiple class B or class C misdemeanors.
(3) A petitioner who would not be eligible to receive a certificate of eligibility under Subsection (1)(d) or (f) may receive a certificate of eligibility for one additional expungement if at least 15 years have elapsed since the last of any of the following:
(a) release from incarceration, parole, or probation relating to the most recent conviction; and
(b) any other conviction which would have prevented issuance of a certificate of eligibility under Subsection (1)(e).
(4) If, after reasonable research, a disposition for an
arrest on the criminal history file is unobtainable, the
division may issue a special certificate giving discretion
of eligibility to the court.
2002
77-18-13 Hearing - Standard of proof - Exception.
(1) The court shall review the petition, certificate of eligibility, and any written evaluation and receive any testimony or writing submitted by a victim or prosecuting attorney.
(2) The court shall issue a certificate to the petitioner, stating the court's finding that the petition and certificate of eligibility are sufficient and the statutory requirements for expungement have been satisfied unless there is clear and convincing evidence to persuade the court that it would be contrary to the interest of the public to grant a requested expungement.
(3) Except as otherwise provided by law, a person receiving
expungement of a conviction under this section may respond
to any inquiry as though the conviction did not occur.
1996
77-18-14 Order to expunge - Distribution of order - Redaction - Receipt of order - Administrative proceedings - Division requirements.
(1) Except as otherwise provided in this chapter, upon approval of a petition for expungement, the court shall enter an order to expunge all records in the petitioner's case which are in the custody of that court or in the custody of any other court, agency, or official.
(2) The petitioner shall be responsible for service of the order of expungement to all affected state, county, and local entities, agencies, and officials including the court, arresting agency, booking agency, Department of Corrections, and the division.
(3) The division shall forward a copy of the expungement order to the Federal Bureau of Investigation.
(4) In order to avoid destruction or sealing of the records in whole or in part, any state, county, or local entity, agency, or official receiving an expungement order shall only expunge all references to the petitioner's name. The petitioner, based on good cause, may petition the court to expunge the records in whole or in part.
(5) No state, county, or local entity, agency, or official may, after receiving service of an expungement order, divulge information contained in the expunged portion of the record.
(6) (a) An order of expungement shall not restrict an agency's use or dissemination of records in its ordinary course of business until the agency has received service of a copy of the order.
(b) Any action taken by an agency after issuance of the order but prior to the agency's receipt of a copy of the order may not be invalidated by the order.
(7) An order of expungement may not:
(a) terminate or invalidate any pending administrative proceedings or actions of which the petitioner had notice according to the records of the administrative body prior to issuance of the expungement order;
(b) affect the enforcement of any order or findings issued by an administrative body pursuant to its lawful authority prior to issuance of the expungement order; or
(c) remove any evidence relating to the petitioner including records of arrest, which the administrative body has used or may use in these proceedings.
(8) The division shall provide the petitioner with a list
of the agencies affected by this subsection with clear written
directions regarding the requirements of this section.
1999
77-18-15 Retention of expunged records - Agencies.
(1) The division shall keep, index, and maintain all expunged records of arrests and convictions.
(2) Employees of the division may not divulge any information contained in its index to any person or agency without a court order, except to the following:
(a) the Board of Pardons and Parole;
(b) the Peace Officer Standards and Training;
(c) federal authorities, unless prohibited by federal law;
(d) the Division of Occupational and Professional Licensing; and
(e) the State Office of Education.
(3) The division may also use the information in its index for the purpose of establishing good character for issuance of a concealed firearm permit as provided in Section 53-5-704 .
(4) A person whose records are released under Subsection (2) shall be given a reasonable opportunity by the recipient agency to challenge and explain any information in the records and to challenge the relevancy of that information before a final determination is made by the agency.
(5) A court may permit inspection or release of an expunged record only upon petition by the person who is the subject of the record and only to the persons named in the petition.
(6) (a) For judicial sentencing, a court may order any records sealed under this section to be opened and admitted into evidence.
(b) The records are confidential and are available for inspection only by the court, parties, counsel for the parties, and any other person who is authorized by the court to inspect them.
(c) At the end of the action or proceeding, the court shall order the records sealed again.
(7) Records released under this section are classified
as protected under Section
63-2-304
and are accessible only as provided under Title
63, Chapter 2, Part 2, Access to Records.
1999
77-18-16 Penalty.
Any person who willfully violates any prohibition in this
chapter is guilty of a class A misdemeanor.
1994
77-18-17 Retroactive application.
The provisions of Sections
77-18-9
through
77-18-17
apply retroactively to all arrests and convictions
regardless of the date on which the arrests were made or
convictions were entered.
1994
