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