1st Sub. H.B. 383
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: J. Carlton 6
6 02-23-23 11:30 AM 6
H.B. 383
1st Sub. (Buff)
Senator Todd D. Weiler proposes the following substitute bill:
1 INDIGENT DEFENSE AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Ryan D. Wilcox
5 Senate Sponsor: Todd D. Weiler
6
7LONG TITLE
8General Description:
9 This bill amends provisions related to indigent defense.
10Highlighted Provisions:
11 This bill:
12 <clarifies when a court may order indigent defense services and resources;
13 <amends provisions related to the Indigent Aggravated Murder Defense Fund; and
14 <makes technical and conforming changes.
15Money Appropriated in this Bill:
16 None
17Other Special Clauses:
18 None
19Utah Code Sections Affected:
20AMENDS:
21 78B-22-203, as last amended by Laws of Utah 2022, Chapter 281
22 78B-22-302, as enacted by Laws of Utah 2019, Chapter 326
23 78B-22-701, as last amended by Laws of Utah 2022, Chapters 281, 451
24 78B-22-702, as renumbered and amended by Laws of Utah 2019, Chapter 326
25 78B-22-703, as renumbered and amended by Laws of Utah 2019, Chapter 326
*HB0383S01* 1st Sub. (Buff) H.B. 383 02-23-23 11:30 AM
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26 78B-22-704, as renumbered and amended by Laws of Utah 2019, Chapter 326
27ENACTS:
28 78B-22-705, Utah Code Annotated 1953
29
30Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 78B-22-203 is amended to read:
32 78B-22-203. Order for indigent defense services.
33 (1) (a) A court shall appoint an indigent defense service provider who is employed by
34an indigent defense system or who has a contract with an indigent defense system to provide
35indigent defense services for an individual over whom the court has jurisdiction if:
36 (i) the individual is an indigent individual; and
37 (ii) the individual does not have private counsel.
38 (b) An indigent defense service provider appointed by the court under Subsection
39(1)(a) shall provide indigent defense services for the indigent individual in all court
40proceedings in the matter for which the indigent defense service provider is appointed.
41 (2) (a) Notwithstanding Subsection (1), the court may order that indigent defense
42services be provided by an indigent defense service provider who does not have a contract with
43an indigent defense system if the court finds by clear and convincing evidence that:
44 (i) all the contracted indigent defense service providers:
45 (A) have a conflict of interest; or
46 (B) do not have sufficient expertise to provide indigent defense services for the
47indigent individual; or
48 (ii) the indigent defense system does not have a contract with an indigent defense
49service provider for indigent defense services.
50 (b) A court may not order indigent defense services under Subsection (2)(a) unless the
51court conducts a hearing with proper notice to the indigent defense system by sending notice of
52the hearing to the county clerk or municipal recorder.
53 (3) (a) A court may order reasonable indigent defense resources for an individual who
54has retained private counsel only if the court finds by clear and convincing evidence that:
55 (i) the individual is an indigent individual;
56 (ii) the individual would be prejudiced by the substitution of a contracted indigent 02-23-23 11:30 AM 1st Sub. (Buff) H.B. 383
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57defense service provider and the prejudice cannot be remedied;
58 (iii) at the time that private counsel was retained, the individual:
59 (A) entered into a written contract with private counsel; and
60 (B) had the ability to pay for indigent defense resources, but no longer has the ability to
61pay for the indigent defense resources in addition to the cost of private counsel;
62 (iv) there has been an unforeseen change in circumstances that requires indigent
63defense resources beyond the individual's ability to pay; and
64 (v) any representation under this Subsection (3)(a) is made in good faith and is not
65calculated to allow the individual or retained private counsel to avoid the requirements of this
66section.
67 (b) A court may not order indigent defense resources under Subsection (3)(a) until the
68court conducts a hearing with proper notice to the indigent defense system by sending notice of
69the hearing to the county clerk or municipal recorder.
70 (c) At the hearing, the court shall conduct an in camera review of:
71 (i) the private counsel contract;
72 (ii) the costs or anticipated costs of the indigent defense resources; and
73 (iii) other relevant records.
74 (4) A court may only order the representation of an indigent individual by an indigent
75defense service provider in accordance with this section.
76 (5) A court may not order indigent defense resources be provided to an indigent
77individual, except as provided in:
78 (a) Subsection (3); or
79 (b) Section 78B-22-705.
80 [(4) Except as provided in this section, a court may not order indigent defense
81services.]
82 Section 2. Section 78B-22-302 is amended to read:
83 78B-22-302. Compensation for indigent defense services.
84 (1) An indigent defense system shall fund indigent defense services ordered by a court
85[in accordance with] under Section 78B-22-203.
86 (2) An indigent defense system shall ensure that there are adequate funds for indigent
87defense resources when a court orders indigent defense services under Section 78B-22-203. 1st Sub. (Buff) H.B. 383 02-23-23 11:30 AM
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88 Section 3. Section 78B-22-701 is amended to read:
89 78B-22-701. Establishment of Indigent Aggravated Murder Defense Fund -- Use
90of fund -- Compensation for indigent legal defense from fund.
91 (1) [For purposes of this part] As used in this part, "fund" means the Indigent
92Aggravated Murder Defense Fund.
93 (2) (a) There is established a custodial fund known as the "Indigent Aggravated Murder
94Defense Fund."
95 (b) The Division of Finance shall disburse money from the fund at the direction of the
96board and subject to this chapter.
97 (3) The fund consists of:
98 (a) money received from participating counties as provided in Sections 78B-22-702
99and 78B-22-703;
100 (b) appropriations made to the fund by the Legislature as provided in Section
10178B-22-703; and
102 (c) interest and earnings from the investment of fund money.
103 (4) The state treasurer shall invest fund money with the earnings and interest accruing
104to the fund.
105 (5) The fund shall be used to assist participating counties with [financial resources]
106expenses for indigent defense services, as provided in Subsection (6), to fulfill [their] the
107constitutional and statutory mandates for the provision of constitutionally effective defense for
108indigent individuals prosecuted for the violation of state laws in cases involving aggravated
109murder.
110 (6) Money allocated to or deposited [in this fund shall be] into the fund is used only:
111 (a) to reimburse participating counties for [expenditures made for an attorney
112appointed to represent] expenses incurred for indigent defense services provided to an indigent
113individual, other than a state inmate in a state prison, who is prosecuted for aggravated murder
114in a participating county; and
115 (b) for administrative costs pursuant to Section 78B-22-501.
116 Section 4. Section 78B-22-702 is amended to read:
117 78B-22-702. County participation.
118 (1) (a) A county may participate in the fund subject to the provisions of this chapter. 02-23-23 11:30 AM 1st Sub. (Buff) H.B. 383
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119 (b) A county that does not participate in the fund, or is not current in the county's
120assessments for the fund, is ineligible to receive money from the fund.
121 [(b)] (c) The board may revoke a county's participation in the fund if the county fails to
122pay the county's assessments when due.
123 (2) To participate in the fund, the legislative body of a county shall:
124 (a) adopt a resolution approving participation in the fund and committing that county to
125fulfill the assessment requirements as set forth in Subsection (3) and Section 78B-22-703; and
126 (b) submit a certified copy of that resolution together with an application to the board.
127 (3) By January 15 of each year, a participating county shall contribute to the fund an
128amount computed in accordance with Section 78B-22-703.
129 (4) A participating county may withdraw from participation in the fund upon:
130 (a) adoption by the county's legislative body of a resolution to withdraw; and
131 (b) notice to the board by January 1 of the year before withdrawal.
132 (5) A county withdrawing from participation in the fund, or whose participation in the
133fund has been revoked for failure to pay the county's assessments when due, shall forfeit the
134right to:
135 (a) any previously [payed] paid assessment;
136 (b) relief from the county's obligation to pay [its] the county's assessment during the
137period of [its] the county's participation in the fund; and
138 (c) any benefit from the fund, including reimbursement of costs that accrued after the
139last day of the period for which the county has paid [its] the county's assessment.
140 Section 5. Section 78B-22-703 is amended to read:
141 78B-22-703. County and state obligations.
142 (1) (a) Except as provided in Subsection (1)(b), a participating county shall pay into the
143fund annually an amount calculated by multiplying the average of the percent of [its] the
144county's population to the total population of all participating counties and of the percent [its]
145of the county's taxable value of the locally and centrally assessed property located within that
146county to the total taxable value of the locally and centrally assessed property to all
147participating counties by the total fund assessment for that year to be paid by all participating
148counties as is determined by the board to be sufficient such that it is unlikely that a deficit will
149occur in the fund in any calendar year. 1st Sub. (Buff) H.B. 383 02-23-23 11:30 AM
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150 (b) The fund minimum [shall be] is equal to or greater than 50 cents per person of all
151counties participating.
152 (c) The amount paid by a participating county [pursuant to] under this Subsection (1)
153[shall be] is the total county obligation for payment of costs [pursuant to] in accordance with
154Section 78B-22-701.
155 (2) (a) A county that elects to initiate participation in the fund, or reestablish
156participation in the fund after participation was terminated, is required to make an equity
157payment in addition to the assessment required by Subsection (1).
158 (b) The equity payment [shall be] is determined by the board and represent what the
159county's equity in the fund would be if the county had made assessments into the fund for each
160of the previous two years.
161 (3) If the fund balance after contribution by the state and participating counties is
162insufficient to replenish the fund annually to at least $250,000, the board by a majority vote
163may terminate the fund.
164 (4) If the fund is terminated, the remaining money shall continue to be administered
165and disbursed in accordance with the provision of this chapter until exhausted, at which time
166the fund shall cease to exist.
167 (5) (a) If the fund runs a deficit during any calendar year, the state is responsible for the
168deficit.
169 (b) In the calendar year following a deficit year, the board shall increase the assessment
170required by Subsection (1) by an amount at least equal to the deficit of the previous year, which
171combined amount becomes the base assessment until another deficit year occurs.
172 (6) In a calendar year in which the fund runs a deficit, or is projected to run a deficit,
173the board shall request a supplemental appropriation to pay for the deficit from the Legislature
174in the following general session.
175 (7) The state shall pay any or all of the reasonable and necessary money for the deficit
176into the fund.
177 Section 6. Section 78B-22-704 is amended to read:
178 78B-22-704. Application and qualification for fund money.
179 (1) A participating county may apply to the board for benefits from the fund if that
180county has incurred, or reasonably anticipates incurring, expenses [in the defense of] for 02-23-23 11:30 AM 1st Sub. (Buff) H.B. 383
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181indigent defense services provided to an indigent individual for an offense involving
182aggravated murder.
183 (2) An application may not be made nor benefits provided from the fund for a case
184filed before September 1, 1998.
185 (3) [If] Except as provided in Subsection (4), if the application of a participating
186county is approved by the board, the board shall negotiate, enter into, and administer a contract
187[with counsel for the indigent individual and costs incurred for the defense of that indigent
188individual, including fees for counsel and reimbursement for indigent defense services incurred
189by an indigent defense service provider] for the cost of indigent defense services with an
190attorney or entity appointed to represent the indigent individual.
191 (4) The board shall pay an indigent defense service provider with a contract under
192Subsection (3) for indigent defense resources approved by a court under Section 78B-22-705.
193 [(4)] (5) A nonparticipating county is responsible for paying for indigent defense
194services in the nonparticipating county and is not eligible for any legislative relief.
195 Section 7. Section 78B-22-705 is enacted to read:
196 78B-22-705. Extraordinary expense -- Motion.
197 (1) If an indigent defense service provider is representing an indigent individual for an
198offense involving aggravated murder and the indigent defense service provider has a contract
199with the board under Section 78B-22-704, the indigent defense service provider may file an ex
200parte motion with the court for an order for the payment of indigent defense resources not
201covered by the contract between the indigent defense service provider and the board.
202 (2) (a) Except as provided in Subsection (2)(b), an indigent defense service provider
203shall file an ex parte motion under Subsection (1) before the cost for indigent defense resources
204is incurred.
205 (b) An indigent defense service provider may file an ex parte motion under Subsection
206(1) for a cost incurred for indigent defense resources on and after May 14, 2019, but before
207May 3, 2023.
208 (3) Upon an ex parte motion under this section, the court shall conduct an in camera
209review of:
210 (a) the indigent defense service provider's contract with the board;
211 (b) the cost, or the anticipated cost, of the indigent defense resources for which the 1st Sub. (Buff) H.B. 383 02-23-23 11:30 AM
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212indigent service provider seeks approval; and
213 (c) any other relevant record.
214 (4) The court may order the board to pay for indigent defense resources sought by the
215indigent defense service provider under this section.