Utah 2023 Regular Session

Utah House Bill HB0383 Compare Versions

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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:
28 1 INDIGENT DEFENSE AMENDMENTS
39 2 2023 GENERAL SESSION
410 3 STATE OF UTAH
511 4 Chief Sponsor: Ryan D. Wilcox
612 5 Senate Sponsor: Todd D. Weiler
713 6
814 7LONG TITLE
915 8General Description:
1016 9 This bill amends provisions related to indigent defense.
1117 10Highlighted Provisions:
1218 11 This bill:
1319 12 <clarifies when a court may order indigent defense services and resources;
1420 13 <amends provisions related to the Indigent Aggravated Murder Defense Fund; and
1521 14 <makes technical and conforming changes.
1622 15Money Appropriated in this Bill:
1723 16 None
1824 17Other Special Clauses:
1925 18 None
2026 19Utah Code Sections Affected:
2127 20AMENDS:
2228 21 78B-22-203, as last amended by Laws of Utah 2022, Chapter 281
2329 22 78B-22-302, as enacted by Laws of Utah 2019, Chapter 326
2430 23 78B-22-701, as last amended by Laws of Utah 2022, Chapters 281, 451
2531 24 78B-22-702, as renumbered and amended by Laws of Utah 2019, Chapter 326
2632 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 -
2735 26 78B-22-704, as renumbered and amended by Laws of Utah 2019, Chapter 326
2836 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
3238 29
3339 30Be it enacted by the Legislature of the state of Utah:
3440 31 Section 1. Section 78B-22-203 is amended to read:
3541 32 78B-22-203. Order for indigent defense services.
3642 33 (1) (a) A court shall appoint an indigent defense service provider who is employed by
3743 34an indigent defense system or who has a contract with an indigent defense system to provide
3844 35indigent defense services for an individual over whom the court has jurisdiction if:
3945 36 (i) the individual is an indigent individual; and
4046 37 (ii) the individual does not have private counsel.
4147 38 (b) An indigent defense service provider appointed by the court under Subsection
4248 39(1)(a) shall provide indigent defense services for the indigent individual in all court
4349 40proceedings in the matter for which the indigent defense service provider is appointed.
4450 41 (2) (a) Notwithstanding Subsection (1), the court may order that indigent defense
4551 42services be provided by an indigent defense service provider who does not have a contract with
4652 43an indigent defense system if the court finds by clear and convincing evidence that:
4753 44 (i) all the contracted indigent defense service providers:
4854 45 (A) have a conflict of interest; or
4955 46 (B) do not have sufficient expertise to provide indigent defense services for the
5056 47indigent individual; or
5157 48 (ii) the indigent defense system does not have a contract with an indigent defense
5258 49service provider for indigent defense services.
5359 50 (b) A court may not order indigent defense services under Subsection (2)(a) unless the
5460 51court conducts a hearing with proper notice to the indigent defense system by sending notice of
5561 52the hearing to the county clerk or municipal recorder.
5662 53 (3) (a) A court may order reasonable indigent defense resources for an individual who
5763 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
5966 - 3 -
60-56 (ii) the individual would be prejudiced by the substitution of a contracted indigent
6167 57defense service provider and the prejudice cannot be remedied;
6268 58 (iii) at the time that private counsel was retained, the individual:
6369 59 (A) entered into a written contract with private counsel; and
6470 60 (B) had the ability to pay for indigent defense resources, but no longer has the ability to
6571 61pay for the indigent defense resources in addition to the cost of private counsel;
6672 62 (iv) there has been an unforeseen change in circumstances that requires indigent
6773 63defense resources beyond the individual's ability to pay; and
6874 64 (v) any representation under this Subsection (3)(a) is made in good faith and is not
6975 65calculated to allow the individual or retained private counsel to avoid the requirements of this
7076 66section.
7177 67 (b) A court may not order indigent defense resources under Subsection (3)(a) until the
7278 68court conducts a hearing with proper notice to the indigent defense system by sending notice of
7379 69the hearing to the county clerk or municipal recorder.
7480 70 (c) At the hearing, the court shall conduct an in camera review of:
7581 71 (i) the private counsel contract;
7682 72 (ii) the costs or anticipated costs of the indigent defense resources; and
7783 73 (iii) other relevant records.
7884 74 (4) A court may only order the representation of an indigent individual by an indigent
7985 75defense service provider in accordance with this section.
8086 76 (5) A court may not order indigent defense resources be provided to an indigent
8187 77individual, except as provided in:
8288 78 (a) Subsection (3); or
8389 79 (b) Section 78B-22-705.
8490 80 [(4) Except as provided in this section, a court may not order indigent defense
8591 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:
8993 83 78B-22-302. Compensation for indigent defense services.
9094 84 (1) An indigent defense system shall fund indigent defense services ordered by a court
9195 85[in accordance with] under Section 78B-22-203.
9296 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 -
9499 88 Section 3. Section 78B-22-701 is amended to read:
95100 89 78B-22-701. Establishment of Indigent Aggravated Murder Defense Fund -- Use
96101 90of fund -- Compensation for indigent legal defense from fund.
97102 91 (1) [For purposes of this part] As used in this part, "fund" means the Indigent
98103 92Aggravated Murder Defense Fund.
99104 93 (2) (a) There is established a custodial fund known as the "Indigent Aggravated Murder
100105 94Defense Fund."
101106 95 (b) The Division of Finance shall disburse money from the fund at the direction of the
102107 96board and subject to this chapter.
103108 97 (3) The fund consists of:
104109 98 (a) money received from participating counties as provided in Sections 78B-22-702
105110 99and 78B-22-703;
106111 100 (b) appropriations made to the fund by the Legislature as provided in Section
107112 10178B-22-703; and
108113 102 (c) interest and earnings from the investment of fund money.
109114 103 (4) The state treasurer shall invest fund money with the earnings and interest accruing
110115 104to the fund.
111116 105 (5) The fund shall be used to assist participating counties with [financial resources]
112117 106expenses for indigent defense services, as provided in Subsection (6), to fulfill [their] the
113118 107constitutional and statutory mandates for the provision of constitutionally effective defense for
114119 108indigent individuals prosecuted for the violation of state laws in cases involving aggravated
115-109murder. Enrolled Copy H.B. 383
116-- 5 -
120+109murder.
117121 110 (6) Money allocated to or deposited [in this fund shall be] into the fund is used only:
118122 111 (a) to reimburse participating counties for [expenditures made for an attorney
119123 112appointed to represent] expenses incurred for indigent defense services provided to an indigent
120124 113individual, other than a state inmate in a state prison, who is prosecuted for aggravated murder
121125 114in a participating county; and
122126 115 (b) for administrative costs pursuant to Section 78B-22-501.
123127 116 Section 4. Section 78B-22-702 is amended to read:
124128 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 -
126131 119 (b) A county that does not participate in the fund, or is not current in the county's
127132 120assessments for the fund, is ineligible to receive money from the fund.
128133 121 [(b)] (c) The board may revoke a county's participation in the fund if the county fails to
129134 122pay the county's assessments when due.
130135 123 (2) To participate in the fund, the legislative body of a county shall:
131136 124 (a) adopt a resolution approving participation in the fund and committing that county to
132137 125fulfill the assessment requirements as set forth in Subsection (3) and Section 78B-22-703; and
133138 126 (b) submit a certified copy of that resolution together with an application to the board.
134139 127 (3) By January 15 of each year, a participating county shall contribute to the fund an
135140 128amount computed in accordance with Section 78B-22-703.
136141 129 (4) A participating county may withdraw from participation in the fund upon:
137142 130 (a) adoption by the county's legislative body of a resolution to withdraw; and
138143 131 (b) notice to the board by January 1 of the year before withdrawal.
139144 132 (5) A county withdrawing from participation in the fund, or whose participation in the
140145 133fund has been revoked for failure to pay the county's assessments when due, shall forfeit the
141146 134right to:
142147 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
146149 137period of [its] the county's participation in the fund; and
147150 138 (c) any benefit from the fund, including reimbursement of costs that accrued after the
148151 139last day of the period for which the county has paid [its] the county's assessment.
149152 140 Section 5. Section 78B-22-703 is amended to read:
150153 141 78B-22-703. County and state obligations.
151154 142 (1) (a) Except as provided in Subsection (1)(b), a participating county shall pay into the
152155 143fund annually an amount calculated by multiplying the average of the percent of [its] the
153156 144county's population to the total population of all participating counties and of the percent [its]
154157 145of the county's taxable value of the locally and centrally assessed property located within that
155158 146county to the total taxable value of the locally and centrally assessed property to all
156159 147participating counties by the total fund assessment for that year to be paid by all participating
157160 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 -
159163 150 (b) The fund minimum [shall be] is equal to or greater than 50 cents per person of all
160164 151counties participating.
161165 152 (c) The amount paid by a participating county [pursuant to] under this Subsection (1)
162166 153[shall be] is the total county obligation for payment of costs [pursuant to] in accordance with
163167 154Section 78B-22-701.
164168 155 (2) (a) A county that elects to initiate participation in the fund, or reestablish
165169 156participation in the fund after participation was terminated, is required to make an equity
166170 157payment in addition to the assessment required by Subsection (1).
167171 158 (b) The equity payment [shall be] is determined by the board and represent what the
168172 159county's equity in the fund would be if the county had made assessments into the fund for each
169173 160of the previous two years.
170174 161 (3) If the fund balance after contribution by the state and participating counties is
171175 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.
174177 164 (4) If the fund is terminated, the remaining money shall continue to be administered
175178 165and disbursed in accordance with the provision of this chapter until exhausted, at which time
176179 166the fund shall cease to exist.
177180 167 (5) (a) If the fund runs a deficit during any calendar year, the state is responsible for the
178181 168deficit.
179182 169 (b) In the calendar year following a deficit year, the board shall increase the assessment
180183 170required by Subsection (1) by an amount at least equal to the deficit of the previous year, which
181184 171combined amount becomes the base assessment until another deficit year occurs.
182185 172 (6) In a calendar year in which the fund runs a deficit, or is projected to run a deficit,
183186 173the board shall request a supplemental appropriation to pay for the deficit from the Legislature
184187 174in the following general session.
185188 175 (7) The state shall pay any or all of the reasonable and necessary money for the deficit
186189 176into the fund.
187190 177 Section 6. Section 78B-22-704 is amended to read:
188191 178 78B-22-704. Application and qualification for fund money.
189192 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 -
191195 181indigent defense services provided to an indigent individual for an offense involving
192196 182aggravated murder.
193197 183 (2) An application may not be made nor benefits provided from the fund for a case
194198 184filed before September 1, 1998.
195199 185 (3) [If] Except as provided in Subsection (4), if the application of a participating
196200 186county is approved by the board, the board shall negotiate, enter into, and administer a contract
197201 187[with counsel for the indigent individual and costs incurred for the defense of that indigent
198202 188individual, including fees for counsel and reimbursement for indigent defense services incurred
199203 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.
203205 191 (4) The board shall pay an indigent defense service provider with a contract under
204206 192Subsection (3) for indigent defense resources approved by a court under Section 78B-22-705.
205207 193 [(4)] (5) A nonparticipating county is responsible for paying for indigent defense
206208 194services in the nonparticipating county and is not eligible for any legislative relief.
207209 195 Section 7. Section 78B-22-705 is enacted to read:
208210 196 78B-22-705. Extraordinary expense -- Motion.
209211 197 (1) If an indigent defense service provider is representing an indigent individual for an
210212 198offense involving aggravated murder and the indigent defense service provider has a contract
211213 199with the board under Section 78B-22-704, the indigent defense service provider may file an ex
212214 200parte motion with the court for an order for the payment of indigent defense resources not
213215 201covered by the contract between the indigent defense service provider and the board.
214216 202 (2) (a) Except as provided in Subsection (2)(b), an indigent defense service provider
215217 203shall file an ex parte motion under Subsection (1) before the cost for indigent defense resources
216218 204is incurred.
217219 205 (b) An indigent defense service provider may file an ex parte motion under Subsection
218220 206(1) for a cost incurred for indigent defense resources on and after May 14, 2019, but before
219221 207May 3, 2023.
220222 208 (3) Upon an ex parte motion under this section, the court shall conduct an in camera
221223 209review of:
222224 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 -
224227 212indigent service provider seeks approval; and
225228 213 (c) any other relevant record.
226229 214 (4) The court may order the board to pay for indigent defense resources sought by the
227230 215indigent defense service provider under this section.