Utah 2023 Regular Session

Utah House Bill HB0383 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	Enrolled Copy H.B. 383
	1	+	1st Sub. H.B. 383
	2	+	LEGISLATIVE GENERAL COUNSEL
	3	+	6 Approved for Filing: J. Carlton 6
	4	+	6 02-23-23 11:30 AM 6
	5	+	H.B. 383
	6	+	1st Sub. (Buff)
	7	+	Senator Todd D. Weiler proposes the following substitute bill:
2	8		1 INDIGENT DEFENSE AMENDMENTS
3	9		2 2023 GENERAL SESSION
4	10		3 STATE OF UTAH
5	11		4 Chief Sponsor: Ryan D. Wilcox
6	12		5 Senate Sponsor: Todd D. Weiler
7	13		6
8	14		7LONG TITLE
9	15		8General Description:
10	16		9 This bill amends provisions related to indigent defense.
11	17		10Highlighted Provisions:
12	18		11 This bill:
13	19		12 <clarifies when a court may order indigent defense services and resources;
14	20		13 <amends provisions related to the Indigent Aggravated Murder Defense Fund; and
15	21		14 <makes technical and conforming changes.
16	22		15Money Appropriated in this Bill:
17	23		16 None
18	24		17Other Special Clauses:
19	25		18 None
20	26		19Utah Code Sections Affected:
21	27		20AMENDS:
22	28		21 78B-22-203, as last amended by Laws of Utah 2022, Chapter 281
23	29		22 78B-22-302, as enacted by Laws of Utah 2019, Chapter 326
24	30		23 78B-22-701, as last amended by Laws of Utah 2022, Chapters 281, 451
25	31		24 78B-22-702, as renumbered and amended by Laws of Utah 2019, Chapter 326
26	32		25 78B-22-703, as renumbered and amended by Laws of Utah 2019, Chapter 326
	33	+	HB0383S01 1st Sub. (Buff) H.B. 383 02-23-23 11:30 AM
	34	+	- 2 -
27	35		26 78B-22-704, as renumbered and amended by Laws of Utah 2019, Chapter 326
28	36		27ENACTS:
29		-	28 78B-22-705, Utah Code Annotated 1953 H.B. 383
30		-	Enrolled Copy
31		-	- 2 -
	37	+	28 78B-22-705, Utah Code Annotated 1953
32	38		29
33	39		30Be it enacted by the Legislature of the state of Utah:
34	40		31 Section 1. Section 78B-22-203 is amended to read:
35	41		32 78B-22-203. Order for indigent defense services.
36	42		33 (1) (a) A court shall appoint an indigent defense service provider who is employed by
37	43		34an indigent defense system or who has a contract with an indigent defense system to provide
38	44		35indigent defense services for an individual over whom the court has jurisdiction if:
39	45		36 (i) the individual is an indigent individual; and
40	46		37 (ii) the individual does not have private counsel.
41	47		38 (b) An indigent defense service provider appointed by the court under Subsection
42	48		39(1)(a) shall provide indigent defense services for the indigent individual in all court
43	49		40proceedings in the matter for which the indigent defense service provider is appointed.
44	50		41 (2) (a) Notwithstanding Subsection (1), the court may order that indigent defense
45	51		42services be provided by an indigent defense service provider who does not have a contract with
46	52		43an indigent defense system if the court finds by clear and convincing evidence that:
47	53		44 (i) all the contracted indigent defense service providers:
48	54		45 (A) have a conflict of interest; or
49	55		46 (B) do not have sufficient expertise to provide indigent defense services for the
50	56		47indigent individual; or
51	57		48 (ii) the indigent defense system does not have a contract with an indigent defense
52	58		49service provider for indigent defense services.
53	59		50 (b) A court may not order indigent defense services under Subsection (2)(a) unless the
54	60		51court conducts a hearing with proper notice to the indigent defense system by sending notice of
55	61		52the hearing to the county clerk or municipal recorder.
56	62		53 (3) (a) A court may order reasonable indigent defense resources for an individual who
57	63		54has retained private counsel only if the court finds by clear and convincing evidence that:
58		-	55 (i) the individual is an indigent individual; Enrolled Copy H.B. 383
	64	+	55 (i) the individual is an indigent individual;
	65	+	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
59	66		- 3 -
60		-	56 (ii) the individual would be prejudiced by the substitution of a contracted indigent
61	67		57defense service provider and the prejudice cannot be remedied;
62	68		58 (iii) at the time that private counsel was retained, the individual:
63	69		59 (A) entered into a written contract with private counsel; and
64	70		60 (B) had the ability to pay for indigent defense resources, but no longer has the ability to
65	71		61pay for the indigent defense resources in addition to the cost of private counsel;
66	72		62 (iv) there has been an unforeseen change in circumstances that requires indigent
67	73		63defense resources beyond the individual's ability to pay; and
68	74		64 (v) any representation under this Subsection (3)(a) is made in good faith and is not
69	75		65calculated to allow the individual or retained private counsel to avoid the requirements of this
70	76		66section.
71	77		67 (b) A court may not order indigent defense resources under Subsection (3)(a) until the
72	78		68court conducts a hearing with proper notice to the indigent defense system by sending notice of
73	79		69the hearing to the county clerk or municipal recorder.
74	80		70 (c) At the hearing, the court shall conduct an in camera review of:
75	81		71 (i) the private counsel contract;
76	82		72 (ii) the costs or anticipated costs of the indigent defense resources; and
77	83		73 (iii) other relevant records.
78	84		74 (4) A court may only order the representation of an indigent individual by an indigent
79	85		75defense service provider in accordance with this section.
80	86		76 (5) A court may not order indigent defense resources be provided to an indigent
81	87		77individual, except as provided in:
82	88		78 (a) Subsection (3); or
83	89		79 (b) Section 78B-22-705.
84	90		80 [(4) Except as provided in this section, a court may not order indigent defense
85	91		81services.]
86		-	82 Section 2. Section 78B-22-302 is amended to read: H.B. 383
87		-	Enrolled Copy
88		-	- 4 -
	92	+	82 Section 2. Section 78B-22-302 is amended to read:
89	93		83 78B-22-302. Compensation for indigent defense services.
90	94		84 (1) An indigent defense system shall fund indigent defense services ordered by a court
91	95		85[in accordance with] under Section 78B-22-203.
92	96		86 (2) An indigent defense system shall ensure that there are adequate funds for indigent
93		-	87defense resources when a court orders indigent defense services under Section 78B-22-203.
	97	+	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
	98	+	- 4 -
94	99		88 Section 3. Section 78B-22-701 is amended to read:
95	100		89 78B-22-701. Establishment of Indigent Aggravated Murder Defense Fund -- Use
96	101		90of fund -- Compensation for indigent legal defense from fund.
97	102		91 (1) [For purposes of this part] As used in this part, "fund" means the Indigent
98	103		92Aggravated Murder Defense Fund.
99	104		93 (2) (a) There is established a custodial fund known as the "Indigent Aggravated Murder
100	105		94Defense Fund."
101	106		95 (b) The Division of Finance shall disburse money from the fund at the direction of the
102	107		96board and subject to this chapter.
103	108		97 (3) The fund consists of:
104	109		98 (a) money received from participating counties as provided in Sections 78B-22-702
105	110		99and 78B-22-703;
106	111		100 (b) appropriations made to the fund by the Legislature as provided in Section
107	112		10178B-22-703; and
108	113		102 (c) interest and earnings from the investment of fund money.
109	114		103 (4) The state treasurer shall invest fund money with the earnings and interest accruing
110	115		104to the fund.
111	116		105 (5) The fund shall be used to assist participating counties with [financial resources]
112	117		106expenses for indigent defense services, as provided in Subsection (6), to fulfill [their] the
113	118		107constitutional and statutory mandates for the provision of constitutionally effective defense for
114	119		108indigent individuals prosecuted for the violation of state laws in cases involving aggravated
115		-	109murder. Enrolled Copy H.B. 383
116		-	- 5 -
	120	+	109murder.
117	121		110 (6) Money allocated to or deposited [in this fund shall be] into the fund is used only:
118	122		111 (a) to reimburse participating counties for [expenditures made for an attorney
119	123		112appointed to represent] expenses incurred for indigent defense services provided to an indigent
120	124		113individual, other than a state inmate in a state prison, who is prosecuted for aggravated murder
121	125		114in a participating county; and
122	126		115 (b) for administrative costs pursuant to Section 78B-22-501.
123	127		116 Section 4. Section 78B-22-702 is amended to read:
124	128		117 78B-22-702. County participation.
125		-	118 (1) (a) A county may participate in the fund subject to the provisions of this chapter.
	129	+	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
	130	+	- 5 -
126	131		119 (b) A county that does not participate in the fund, or is not current in the county's
127	132		120assessments for the fund, is ineligible to receive money from the fund.
128	133		121 [(b)] (c) The board may revoke a county's participation in the fund if the county fails to
129	134		122pay the county's assessments when due.
130	135		123 (2) To participate in the fund, the legislative body of a county shall:
131	136		124 (a) adopt a resolution approving participation in the fund and committing that county to
132	137		125fulfill the assessment requirements as set forth in Subsection (3) and Section 78B-22-703; and
133	138		126 (b) submit a certified copy of that resolution together with an application to the board.
134	139		127 (3) By January 15 of each year, a participating county shall contribute to the fund an
135	140		128amount computed in accordance with Section 78B-22-703.
136	141		129 (4) A participating county may withdraw from participation in the fund upon:
137	142		130 (a) adoption by the county's legislative body of a resolution to withdraw; and
138	143		131 (b) notice to the board by January 1 of the year before withdrawal.
139	144		132 (5) A county withdrawing from participation in the fund, or whose participation in the
140	145		133fund has been revoked for failure to pay the county's assessments when due, shall forfeit the
141	146		134right to:
142	147		135 (a) any previously [payed] paid assessment;
143		-	136 (b) relief from the county's obligation to pay [its] the county's assessment during the H.B. 383
144		-	Enrolled Copy
145		-	- 6 -
	148	+	136 (b) relief from the county's obligation to pay [its] the county's assessment during the
146	149		137period of [its] the county's participation in the fund; and
147	150		138 (c) any benefit from the fund, including reimbursement of costs that accrued after the
148	151		139last day of the period for which the county has paid [its] the county's assessment.
149	152		140 Section 5. Section 78B-22-703 is amended to read:
150	153		141 78B-22-703. County and state obligations.
151	154		142 (1) (a) Except as provided in Subsection (1)(b), a participating county shall pay into the
152	155		143fund annually an amount calculated by multiplying the average of the percent of [its] the
153	156		144county's population to the total population of all participating counties and of the percent [its]
154	157		145of the county's taxable value of the locally and centrally assessed property located within that
155	158		146county to the total taxable value of the locally and centrally assessed property to all
156	159		147participating counties by the total fund assessment for that year to be paid by all participating
157	160		148counties as is determined by the board to be sufficient such that it is unlikely that a deficit will
158		-	149occur in the fund in any calendar year.
	161	+	149occur in the fund in any calendar year. 1st Sub. (Buff) H.B. 383 02-23-23 11:30 AM
	162	+	- 6 -
159	163		150 (b) The fund minimum [shall be] is equal to or greater than 50 cents per person of all
160	164		151counties participating.
161	165		152 (c) The amount paid by a participating county [pursuant to] under this Subsection (1)
162	166		153[shall be] is the total county obligation for payment of costs [pursuant to] in accordance with
163	167		154Section 78B-22-701.
164	168		155 (2) (a) A county that elects to initiate participation in the fund, or reestablish
165	169		156participation in the fund after participation was terminated, is required to make an equity
166	170		157payment in addition to the assessment required by Subsection (1).
167	171		158 (b) The equity payment [shall be] is determined by the board and represent what the
168	172		159county's equity in the fund would be if the county had made assessments into the fund for each
169	173		160of the previous two years.
170	174		161 (3) If the fund balance after contribution by the state and participating counties is
171	175		162insufficient to replenish the fund annually to at least $250,000, the board by a majority vote
172		-	163may terminate the fund. Enrolled Copy H.B. 383
173		-	- 7 -
	176	+	163may terminate the fund.
174	177		164 (4) If the fund is terminated, the remaining money shall continue to be administered
175	178		165and disbursed in accordance with the provision of this chapter until exhausted, at which time
176	179		166the fund shall cease to exist.
177	180		167 (5) (a) If the fund runs a deficit during any calendar year, the state is responsible for the
178	181		168deficit.
179	182		169 (b) In the calendar year following a deficit year, the board shall increase the assessment
180	183		170required by Subsection (1) by an amount at least equal to the deficit of the previous year, which
181	184		171combined amount becomes the base assessment until another deficit year occurs.
182	185		172 (6) In a calendar year in which the fund runs a deficit, or is projected to run a deficit,
183	186		173the board shall request a supplemental appropriation to pay for the deficit from the Legislature
184	187		174in the following general session.
185	188		175 (7) The state shall pay any or all of the reasonable and necessary money for the deficit
186	189		176into the fund.
187	190		177 Section 6. Section 78B-22-704 is amended to read:
188	191		178 78B-22-704. Application and qualification for fund money.
189	192		179 (1) A participating county may apply to the board for benefits from the fund if that
190		-	180county has incurred, or reasonably anticipates incurring, expenses [in the defense of] for
	193	+	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
	194	+	- 7 -
191	195		181indigent defense services provided to an indigent individual for an offense involving
192	196		182aggravated murder.
193	197		183 (2) An application may not be made nor benefits provided from the fund for a case
194	198		184filed before September 1, 1998.
195	199		185 (3) [If] Except as provided in Subsection (4), if the application of a participating
196	200		186county is approved by the board, the board shall negotiate, enter into, and administer a contract
197	201		187[with counsel for the indigent individual and costs incurred for the defense of that indigent
198	202		188individual, including fees for counsel and reimbursement for indigent defense services incurred
199	203		189by an indigent defense service provider] for the cost of indigent defense services with an
200		-	190attorney or entity appointed to represent the indigent individual. H.B. 383
201		-	Enrolled Copy
202		-	- 8 -
	204	+	190attorney or entity appointed to represent the indigent individual.
203	205		191 (4) The board shall pay an indigent defense service provider with a contract under
204	206		192Subsection (3) for indigent defense resources approved by a court under Section 78B-22-705.
205	207		193 [(4)] (5) A nonparticipating county is responsible for paying for indigent defense
206	208		194services in the nonparticipating county and is not eligible for any legislative relief.
207	209		195 Section 7. Section 78B-22-705 is enacted to read:
208	210		196 78B-22-705. Extraordinary expense -- Motion.
209	211		197 (1) If an indigent defense service provider is representing an indigent individual for an
210	212		198offense involving aggravated murder and the indigent defense service provider has a contract
211	213		199with the board under Section 78B-22-704, the indigent defense service provider may file an ex
212	214		200parte motion with the court for an order for the payment of indigent defense resources not
213	215		201covered by the contract between the indigent defense service provider and the board.
214	216		202 (2) (a) Except as provided in Subsection (2)(b), an indigent defense service provider
215	217		203shall file an ex parte motion under Subsection (1) before the cost for indigent defense resources
216	218		204is incurred.
217	219		205 (b) An indigent defense service provider may file an ex parte motion under Subsection
218	220		206(1) for a cost incurred for indigent defense resources on and after May 14, 2019, but before
219	221		207May 3, 2023.
220	222		208 (3) Upon an ex parte motion under this section, the court shall conduct an in camera
221	223		209review of:
222	224		210 (a) the indigent defense service provider's contract with the board;
223		-	211 (b) the cost, or the anticipated cost, of the indigent defense resources for which the
	225	+	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
	226	+	- 8 -
224	227		212indigent service provider seeks approval; and
225	228		213 (c) any other relevant record.
226	229		214 (4) The court may order the board to pay for indigent defense resources sought by the
227	230		215indigent defense service provider under this section.