Utah 2023 Regular Session

Utah House Bill HB0385 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	Enrolled Copy H.B. 385
	1	+	3rd Sub. H.B. 385
	2	+	LEGISLATIVE GENERAL COUNSEL
	3	+	6 Approved for Filing: J. Rogers 6
	4	+	6 02-23-23 7:33 PM 6
	5	+	H.B. 385
	6	+	3rd Sub. (Cherry)
	7	+	Representative Nelson T. Abbott proposes the following substitute bill:
2	8		1 MENTALLY ILL OFFENDERS AMENDMENTS
3	9		2 2023 GENERAL SESSION
4	10		3 STATE OF UTAH
5	11		4 Chief Sponsor: Nelson T. Abbott
6	12		5 Senate Sponsor: Todd D. Weiler
7	13		6
8	14		7LONG TITLE
9	15		8General Description:
10	16		9 This bill concerns offenders with a mental condition.
11	17		10Highlighted Provisions:
12	18		11 This bill:
13	19		12 <defines and modifies terms;
14	20		13 <modifies when certain defendants are eligible for a criminal defense based on a
15	21		14mental condition;
16	22		15 <modifies when certain defendants may receive probation, supervised release, or a
17	23		16reduction to a lower category of offense under specified circumstances;
18	24		17 <changes "guilty with a mental illness" to "guilty with a mental condition";
19	25		18 <amends eligibility, procedures, and requirements concerning a plea of guilty with a
20	26		19mental condition;
21	27		20 <amends certain provisions concerning the sentencing and commitment of an
22	28		21offender with a mental condition; and
23	29		22 <makes technical and conforming changes.
24	30		23Money Appropriated in this Bill:
25	31		24 None
26	32		25Other Special Clauses:
	33	+	HB0385S03 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	34	+	- 2 -
27	35		26 This bill provides revisor instructions.
28	36		27Utah Code Sections Affected:
29		-	28AMENDS: H.B. 385
30		-	Enrolled Copy
31		-	- 2 -
	37	+	28AMENDS:
32	38		29 53-10-208.1, as last amended by Laws of Utah 2021, Chapter 159
33	39		30 53-10-403.5, as last amended by Laws of Utah 2020, Chapter 415
34	40		31 62A-15-610, as last amended by Laws of Utah 2011, Chapter 366
35	41		32 62A-15-623, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
36	42		33Chapter 8
37	43		34 62A-15-902, as last amended by Laws of Utah 2011, Chapter 366
38	44		35 76-2-305, as last amended by Laws of Utah 2016, Chapter 115
39	45		36 76-3-201, as repealed and reenacted by Laws of Utah 2021, Chapter 260 and last
40	46		37amended by Coordination Clause, Laws of Utah 2021, Chapter 261
41	47		38 76-3-406, as last amended by Laws of Utah 2022, Chapter 181
42	48		39 76-5-205.5, as last amended by Laws of Utah 2022, Chapter 181
43	49		40 76-5-303.5, as last amended by Laws of Utah 2022, Chapter 181
44	50		41 76-10-1311, as last amended by Laws of Utah 2008, Chapter 382
45	51		42 77-13-1, as last amended by Laws of Utah 2011, Chapter 366
46	52		43 77-16a-101, as last amended by Laws of Utah 2011, Chapter 366
47	53		44 77-16a-102, as last amended by Laws of Utah 2019, Chapter 312
48	54		45 77-16a-104, as last amended by Laws of Utah 2011, Chapter 366
49	55		46 77-16a-201, as last amended by Laws of Utah 2018, Chapter 334
50	56		47 77-16a-202, as last amended by Laws of Utah 2011, Chapter 366
51	57		48 77-16a-203, as last amended by Laws of Utah 2011, Chapter 366
52	58		49 77-16a-204, as last amended by Laws of Utah 2011, Chapter 366
53	59		50 77-16a-205, as last amended by Laws of Utah 2018, Chapter 334
54	60		51 77-16a-301, as last amended by Laws of Utah 2019, Chapter 312
55	61		52 77-16a-302, as last amended by Laws of Utah 2011, Chapter 366
56	62		53 77-16a-304, as last amended by Laws of Utah 2011, Chapter 366
57	63		54 77-16a-305, as last amended by Laws of Utah 1993, Chapter 285
58		-	55 77-16a-306, as last amended by Laws of Utah 2011, Chapter 366 Enrolled Copy H.B. 385
	64	+	55 77-16a-306, as last amended by Laws of Utah 2011, Chapter 366
	65	+	56 77-27-2, as last amended by Laws of Utah 2021, Chapter 260 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
59	66		- 3 -
60		-	56 77-27-2, as last amended by Laws of Utah 2021, Chapter 260
61	67		57 77-27-5.3, as last amended by Laws of Utah 2011, Chapter 366
62	68		58 77-27-10.5, as last amended by Laws of Utah 2011, Chapter 366
63	69		59 77-36-1.1, as last amended by Laws of Utah 2021, Chapter 213
64	70		60 77-38-302, as last amended by Laws of Utah 2020, Chapter 230
65	71		61 77-38b-102, as last amended by Laws of Utah 2022, Chapter 359
66	72		62 78A-2-302, as last amended by Laws of Utah 2022, Chapter 272
67	73		63 78B-7-901, as enacted by Laws of Utah 2020, Chapter 142
68	74		64 80-2-1004, as renumbered and amended by Laws of Utah 2022, Chapter 334
69	75		65REPEALS AND REENACTS:
70	76		66 77-16a-103, as last amended by Laws of Utah 2011, Chapter 366
71	77		67
72	78		68Be it enacted by the Legislature of the state of Utah:
73	79		69 Section 1. Section 53-10-208.1 is amended to read:
74	80		70 53-10-208.1. Magistrates and court clerks to supply information.
75	81		71 (1) Every magistrate or clerk of a court responsible for court records in this state shall,
76	82		72within 30 days of the disposition and on forms and in the manner provided by the division,
77	83		73furnish the division with information pertaining to:
78	84		74 (a) all dispositions of criminal matters, including:
79	85		75 (i) guilty pleas;
80	86		76 (ii) convictions;
81	87		77 (iii) dismissals;
82	88		78 (iv) acquittals;
83	89		79 (v) pleas held in abeyance;
84	90		80 (vi) judgments of not guilty by reason of insanity;
85	91		81 (vii) judgments of guilty with a mental [illness] condition;
86		-	82 (viii) finding of mental incompetence to stand trial; and H.B. 385
87		-	Enrolled Copy
88		-	- 4 -
	92	+	82 (viii) finding of mental incompetence to stand trial; and
89	93		83 (ix) probations granted;
90	94		84 (b) orders of civil commitment under the terms of Section 62A-15-631;
91	95		85 (c) the issuance, recall, cancellation, or modification of all warrants of arrest or
92	96		86commitment as described in Rule 6, Utah Rules of Criminal Procedure and Section 78B-6-303,
93		-	87within one day of the action and in a manner provided by the division; and
	97	+	87within one day of the action and in a manner provided by the division; and 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	98	+	- 4 -
94	99		88 (d) protective orders issued after notice and hearing, pursuant to:
95	100		89 (i) Title 77, Chapter 36, Cohabitant Abuse Procedures Act;
96	101		90 (ii) Title 78B, Chapter 7, Part 4, Dating Violence Protective Orders;
97	102		91 (iii) Title 78B, Chapter 7, Part 5, Sexual Violence Protective Orders;
98	103		92 (iv) Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders; or
99	104		93 (v) Title 78B, Chapter 7, Part 8, Criminal Protective Orders.
100	105		94 (2) The court in the county where a determination or finding was made shall transmit a
101	106		95record of the determination or finding to the bureau no later than 48 hours after the
102	107		96determination is made, excluding Saturdays, Sundays, and legal holidays, if an individual is:
103	108		97 (a) adjudicated as a mental defective; or
104	109		98 (b) involuntarily committed to a mental institution in accordance with Subsection
105	110		9962A-15-631(16).
106	111		100 (3) The record described in Subsection (2) shall include:
107	112		101 (a) an agency record identifier;
108	113		102 (b) the individual's name, sex, race, and date of birth; and
109	114		103 (c) the individual's social security number, government issued driver license or
110	115		104identification number, alien registration number, government passport number, state
111	116		105identification number, or FBI number.
112	117		106 Section 2. Section 53-10-403.5 is amended to read:
113	118		107 53-10-403.5. Definitions.
114	119		108 As used in Sections 53-10-403, 53-10-404, 53-10-404.5, 53-10-405, and 53-10-406:
115		-	109 (1) "Bureau" means the Bureau of Forensic Services. Enrolled Copy H.B. 385
116		-	- 5 -
	120	+	109 (1) "Bureau" means the Bureau of Forensic Services.
117	121		110 (2) "Combined DNA Index System" or "CODIS" means the program operated by the
118	122		111Federal Bureau of Investigation to support criminal justice DNA databases and the software
119	123		112used to run the databases.
120	124		113 (3) "Conviction" means:
121	125		114 (a) a verdict or conviction;
122	126		115 (b) a plea of guilty or guilty [and mentally ill] with a mental condition;
123	127		116 (c) a plea of no contest; or
124	128		117 (d) the acceptance by the court of a plea in abeyance.
125		-	118 (4) "DNA" means deoxyribonucleic acid.
	129	+	118 (4) "DNA" means deoxyribonucleic acid. 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	130	+	- 5 -
126	131		119 (5) "DNA specimen" or "specimen" means a biological sample of a person's saliva or
127	132		120blood, a biological sample from a crime scene, or a sample collected as part of an investigation.
128	133		121 (6) "Final judgment" means a judgment, including any supporting opinion, concerning
129	134		122which all appellate remedies have been exhausted or the time for appeal has expired.
130	135		123 (7) "Rapid DNA" means the fully automated process of developing a DNA profile.
131	136		124 (8) "Violent felony" means any offense under Section 76-3-203.5.
132	137		125 Section 3. Section 62A-15-610 is amended to read:
133	138		126 62A-15-610. Objectives of state hospital and other facilities -- Persons who may
134	139		127be admitted to state hospital.
135	140		128 (1) The objectives of the state hospital and other mental health facilities shall be to care
136	141		129for all persons within this state who are subject to the provisions of this chapter; and to furnish
137	142		130them with the proper attendance, medical treatment, seclusion, rest, restraint, amusement,
138	143		131occupation, and support that is conducive to their physical and mental well-being.
139	144		132 (2) Only the following persons may be admitted to the state hospital:
140	145		133 (a) persons 18 years [of age] old and older who meet the criteria necessary for
141	146		134commitment under this part and who have severe mental disorders for whom no appropriate,
142	147		135less restrictive treatment alternative is available;
143		-	136 (b) persons under 18 years [of age] old who meet the criteria necessary for commitment H.B. 385
144		-	Enrolled Copy
145		-	- 6 -
	148	+	136 (b) persons under 18 years [of age] old who meet the criteria necessary for commitment
146	149		137under Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and
147	150		138Mental Health, and for whom no less restrictive alternative is available;
148	151		139 (c) persons adjudicated and found to be guilty with a mental [illness under Title 77,
149	152		140Chapter 16a, Commitment and Treatment of Persons with a Mental Illness] condition under
150	153		141Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition;
151	154		142 (d) persons adjudicated and found to be not guilty by reason of insanity who are under
152	155		143a subsequent commitment order because they have a mental illness and are a danger to
153	156		144themselves or others, under Section 77-16a-302;
154	157		145 (e) persons found incompetent to proceed under Section 77-15-6;
155	158		146 (f) persons who require an examination under Title 77, Utah Code of Criminal
156	159		147Procedure; and
157	160		148 (g) persons in the custody of the Department of Corrections, admitted in accordance
158		-	149with Section 62A-15-605.5, giving priority to those persons with severe mental disorders.
	161	+	149with Section 62A-15-605.5, giving priority to those persons with severe mental disorders. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	162	+	- 6 -
159	163		150 Section 4. Section 62A-15-623 is amended to read:
160	164		151 62A-15-623. Criminal's escape -- Penalty.
161	165		152 Any person committed to the state hospital under the provisions of Title 77, Chapter 15,
162	166		153Inquiry into Sanity of Defendant, or [Chapter 16a, Commitment and Treatment of Persons with
163	167		154a Mental Illness] Chapter 16a, Commitment and Treatment of Individuals with a Mental
164	168		155Condition, who escapes or leaves the state hospital without proper legal authority is guilty of a
165	169		156class A misdemeanor.
166	170		157 Section 5. Section 62A-15-902 is amended to read:
167	171		158 62A-15-902. Design and operation -- Security.
168	172		159 (1) The forensic mental health facility is a secure treatment facility.
169	173		160 (2) (a) The forensic mental health facility accommodates the following populations:
170	174		161 (i) prison inmates displaying mental illness, as defined in Section 62A-15-602,
171	175		162necessitating treatment in a secure mental health facility;
172		-	163 (ii) criminally adjudicated persons found guilty with a mental [illness] condition or Enrolled Copy H.B. 385
173		-	- 7 -
	176	+	163 (ii) criminally adjudicated persons found guilty with a mental [illness] condition or
174	177		164guilty with a mental [illness] condition at the time of the offense undergoing evaluation for a
175	178		165mental [illness under Title 77, Chapter 16a, Commitment and Treatment of Persons with a
176	179		166Mental Illness] condition under Title 77, Chapter 16a, Commitment and Treatment of
177	180		167Individuals with a Mental Condition;
178	181		168 (iii) criminally adjudicated persons undergoing evaluation for competency or found
179	182		169guilty with a mental [illness] condition or guilty with a mental [illness] condition at the time of
180	183		170the offense under [Title 77, Chapter 16a, Commitment and Treatment of Persons with a Mental
181	184		171Illness] Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental
182	185		172Condition, who also have an intellectual disability;
183	186		173 (iv) persons undergoing evaluation for competency or found by a court to be
184	187		174incompetent to proceed in accordance with Title 77, Chapter 15, Inquiry into Sanity of
185	188		175Defendant, or not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
186	189		176 (v) persons who are civilly committed to the custody of a local mental health authority
187	190		177in accordance with Title 62A, Chapter 15, Part 6, Utah State Hospital and Other Mental Health
188	191		178Facilities, and who may not be properly supervised by the Utah State Hospital because of a lack
189	192		179of necessary security, as determined by the superintendent or the superintendent's designee; and
190		-	180 (vi) persons ordered to commit themselves to the custody of the Division of Substance
	193	+	180 (vi) persons ordered to commit themselves to the custody of the Division of Substance 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	194	+	- 7 -
191	195		181Abuse and Mental Health for treatment at the Utah State Hospital as a condition of probation or
192	196		182stay of sentence pursuant to Title 77, Chapter 18, The Judgment.
193	197		183 (b) Placement of an offender in the forensic mental health facility under any category
194	198		184described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the offender's
195	199		185status as established by the court at the time of adjudication.
196	200		186 (c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
197	201		187department shall make rules providing for the allocation of beds to the categories described in
198	202		188Subsection (2)(a).
199	203		189 (3) The department shall:
200		-	190 (a) own and operate the forensic mental health facility; H.B. 385
201		-	Enrolled Copy
202		-	- 8 -
	204	+	190 (a) own and operate the forensic mental health facility;
203	205		191 (b) provide and supervise administrative and clinical staff; and
204	206		192 (c) provide security staff who are trained as psychiatric technicians.
205	207		193 (4) Pursuant to Subsection 62A-15-603(3) the executive director shall designate
206	208		194individuals to perform security functions for the state hospital.
207	209		195 Section 6. Section 76-2-305 is amended to read:
208	210		196 76-2-305. Mental condition -- Use as a defense -- Influence of alcohol or other
209	211		197substance voluntarily consumed.
210	212		198 (1) As used in this section:
211	213		199 (a) (i) "Mental condition" means a mental illness or a mental disability that
212	214		200substantially impairs an individual's mental, emotional, or behavioral functioning.
213	215		201 (ii) "Mental condition" does not include a mental abnormality that is manifested solely
214	216		202by repeated criminal conduct, anti-social behavior, or a substance use disorder.
215	217		203 (b) "Mental disability" means an intellectual disability or a neurodevelopmental
216	218		204disorder as those terms are defined in the current edition of the Diagnostic and Statistical
217	219		205Manual of Mental Disorders published by the American Psychiatric Association.
218	220		206 (c) "Mental illness" means the following mental disorders as described in the most
219	221		207recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
220	222		208American Psychiatric Association:
221	223		209 (i) schizophrenia spectrum and other psychotic disorders; or
222	224		210 (ii) other serious mental health conditions with psychotic features.
223		-	211 [(1)] (2) (a) It is a defense to a prosecution under any statute or ordinance that the
	225	+	211 [(1)] (2) (a) It is a defense to a prosecution under any statute or ordinance that the 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	226	+	- 8 -
224	227		212defendant, as a result of a mental [illness] condition, lacked the mental state required as an
225	228		213element of the offense charged.
226	229		214 (b) [Mental illness] A mental condition is not otherwise a defense, but may be evidence
227	230		215in mitigation of the penalty in a capital felony under Section 76-3-207 and may be evidence of
228	231		216special mitigation reducing the level of a criminal homicide or attempted criminal homicide
229		-	217offense under Section 76-5-205.5. Enrolled Copy H.B. 385
230		-	- 9 -
	232	+	217offense under Section 76-5-205.5.
231	233		218 [(2)] (3) The defense defined in this section includes the defenses known as "insanity"
232	234		219and "diminished mental capacity."
233	235		220 [(3)] (4) A person who asserts a defense of insanity or diminished mental capacity, and
234	236		221who is under the influence of voluntarily consumed, injected, or ingested alcohol, controlled
235	237		222substances, or volatile substances at the time of the alleged offense is not excused from
236	238		223criminal responsibility on the basis of a mental [illness] condition if the alcohol or substance
237	239		224caused, triggered, or substantially contributed to the mental [illness] condition.
238	240		225 [(4) As used in this section:]
239	241		226 [(a) "Intellectual disability" means a significant subaverage general intellectual
240	242		227functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to
241	243		228age 22.]
242	244		229 [(b) (i) "Mental illness" means a mental disease or defect that substantially impairs a
243	245		230person's mental, emotional, or behavioral functioning. A mental defect may be a congenital
244	246		231condition, the result of injury, or a residual effect of a physical or mental disease and includes,
245	247		232but is not limited to, intellectual disability.]
246	248		233 [(ii) "Mental illness" does not mean an abnormality manifested primarily by repeated
247	249		234criminal conduct.]
248	250		235 Section 7. Section 76-3-201 is amended to read:
249	251		236 76-3-201. Sentences or combination of sentences allowed -- Restitution and other
250	252		237costs -- Civil penalties.
251	253		238 (1) As used in this section:
252	254		239 (a) (i) "Convicted" means:
253	255		240 (A) having entered a plea of guilty, a plea of no contest, or a plea of guilty with a
254	256		241mental [illness] condition; or
255		-	242 (B) having received a judgment of guilty or a judgment of guilty with a mental [illness]
	257	+	242 (B) having received a judgment of guilty or a judgment of guilty with a mental [illness] 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	258	+	- 9 -
256	259		243condition.
257		-	244 (ii) "Convicted" does not include an adjudication of an offense under Section 80-6-701. H.B. 385
258		-	Enrolled Copy
259		-	- 10 -
	260	+	244 (ii) "Convicted" does not include an adjudication of an offense under Section 80-6-701.
260	261		245 (b) "Restitution" means the same as that term is defined in Section 77-38b-102.
261	262		246 (2) Within the limits provided by this chapter, a court may sentence an individual
262	263		247convicted of an offense to any one of the following sentences, or combination of the following
263	264		248sentences:
264	265		249 (a) to pay a fine;
265	266		250 (b) to removal or disqualification from public or private office;
266	267		251 (c) except as otherwise provided by law, to probation in accordance with Section
267	268		25277-18-105;
268	269		253 (d) to imprisonment;
269	270		254 (e) on or after April 27, 1992, to life in prison without parole; or
270	271		255 (f) to death.
271	272		256 (3) (a) This chapter does not deprive a court of authority conferred by law:
272	273		257 (i) to forfeit property;
273	274		258 (ii) to dissolve a corporation;
274	275		259 (iii) to suspend or cancel a license;
275	276		260 (iv) to permit removal of an individual from office;
276	277		261 (v) to cite for contempt; or
277	278		262 (vi) to impose any other civil penalty.
278	279		263 (b) A court may include a civil penalty in a sentence.
279	280		264 (4) In addition to any other sentence that a sentencing court may impose, the court shall
280	281		265order an individual to:
281	282		266 (a) pay restitution in accordance with Title 77, Chapter 38b, Crime Victims Restitution
282	283		267Act;
283	284		268 (b) subject to Subsection (5) and Section 77-32b-104, pay the cost of any government
284	285		269transportation if the individual was:
285	286		270 (i) transported, in accordance with a court order, from one county to another county
286		-	271within the state; Enrolled Copy H.B. 385
287		-	- 11 -
	287	+	271within the state;
288	288		272 (ii) charged with a felony or a misdemeanor; and
289		-	273 (iii) convicted of an offense;
	289	+	273 (iii) convicted of an offense; 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	290	+	- 10 -
290	291		274 (c) subject to Section 77-32b-104, pay the cost expended by an appropriate
291	292		275governmental entity under Section 77-30-24 for the extradition of the individual if the
292	293		276individual:
293	294		277 (i) was extradited to this state, under Title 77, Chapter 30, Extradition, to resolve
294	295		278pending criminal charges; and
295	296		279 (ii) is convicted of an offense in the county for which the individual is returned;
296	297		280 (d) subject to Subsection (6) and Subsections 77-32b-104(2), (3), and (4), pay the cost
297	298		281of medical care, treatment, hospitalization, and related transportation, as described in Section
298	299		28217-50-319, that is provided by a county to the individual while the individual is in a county
299	300		283correctional facility before and after sentencing if:
300	301		284 (i) the individual is convicted of an offense that results in incarceration in the county
301	302		285correctional facility; and
302	303		286 (ii) (A) the individual is not a state prisoner housed in the county correctional facility
303	304		287through a contract with the Department of Corrections; or
304	305		288 (B) the reimbursement does not duplicate the reimbursement under Section 64-13e-104
305	306		289if the individual is a state probationary inmate or a state parole inmate; and
306	307		290 (e) pay any other cost that the court determines is appropriate under Section
307	308		29177-32b-104.
308	309		292 (5) (a) The court may not order an individual to pay the costs of government
309	310		293transportation under Subsection (4)(b) if:
310	311		294 (i) the individual is charged with an infraction or a warrant is issued for an infraction
311	312		295on a subsequent failure to appear; or
312	313		296 (ii) the individual was not transported in accordance with a court order.
313	314		297 (b) (i) The cost of governmental transportation under Subsection (4)(b) shall be
314		-	298calculated according to the following schedule: H.B. 385
315		-	Enrolled Copy
316		-	- 12 -
	315	+	298calculated according to the following schedule:
317	316		299 (A) $100 for up to 100 miles that an individual is transported;
318	317		300 (B) $200 for 100 miles to 200 miles that an individual is transported; and
319	318		301 (C) $350 for 200 miles or more that an individual is transported.
320	319		302 (ii) The schedule under Subsection (5)(b)(i) applies to each individual transported
321	320		303regardless of the number of individuals transported in a single trip.
322		-	304 (6) The cost of medical care under Subsection (4)(d) does not include expenses
	321	+	304 (6) The cost of medical care under Subsection (4)(d) does not include expenses 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	322	+	- 11 -
323	323		305incurred by the county correctional facility in providing reasonable accommodation for an
324	324		306inmate qualifying as an individual with a disability as defined and covered by the Americans
325	325		307with Disabilities Act, 42 U.S.C. 12101 through 12213, including medical and mental health
326	326		308treatment for the inmate's disability.
327	327		309 Section 8. Section 76-3-406 is amended to read:
328	328		310 76-3-406. Crimes for which probation, suspension of sentence, lower category of
329	329		311offense, or hospitalization may not be granted.
330	330		312 (1) Notwithstanding Sections 76-3-201 and 77-18-105 and [Title 77, Chapter 16a,
331	331		313Commitment and Treatment of Persons with a Mental Illness] Title 77, Chapter 16a,
332	332		314Commitment and Treatment of Individuals with a Mental Condition, except as provided in
333	333		315Section 76-5-406.5 or Subsection 77-16a-103(6) or (7), probation may not be granted, the
334	334		316execution or imposition of sentence may not be suspended, the court may not enter a judgment
335	335		317for a lower category of offense, and hospitalization may not be ordered, the effect of which
336	336		318would in any way shorten the prison sentence for an individual who commits a capital felony or
337	337		319a first degree felony involving:
338	338		320 (a) Section 76-5-202, aggravated murder;
339	339		321 (b) Section 76-5-203, murder;
340	340		322 (c) Section 76-5-301.1, child kidnaping;
341	341		323 (d) Section 76-5-302, aggravated kidnaping;
342	342		324 (e) Section 76-5-402, rape, if the individual is sentenced under Subsection
343		-	32576-5-402(3)(b), (3)(c), or (4); Enrolled Copy H.B. 385
344		-	- 13 -
	343	+	32576-5-402(3)(b), (3)(c), or (4);
345	344		326 (f) Section 76-5-402.1, rape of a child;
346	345		327 (g) Section 76-5-402.2, object rape, if the individual is sentenced under Subsection
347	346		32876-5-402.2(3)(b), (3)(c), or (4);
348	347		329 (h) Section 76-5-402.3, object rape of a child;
349	348		330 (i) Section 76-5-403, forcible sodomy, if the individual is sentenced under Subsection
350	349		33176-5-403(3)(b), (3)(c), or (4);
351	350		332 (j) Section 76-5-403.1, sodomy on a child;
352	351		333 (k) Section 76-5-404, forcible sexual abuse, if the individual is sentenced under
353	352		334Subsection 76-5-404(3)(b)(i) or (ii);
354		-	335 (l) Section 76-5-404.3, aggravated sexual abuse of a child;
	353	+	335 (l) Section 76-5-404.3, aggravated sexual abuse of a child; 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	354	+	- 12 -
355	355		336 (m) Section 76-5-405, aggravated sexual assault; or
356	356		337 (n) any attempt to commit a felony listed in Subsection (1)(f), (h), or (j).
357	357		338 (2) Except for an offense before the district court in accordance with Section 80-6-502
358	358		339or 80-6-504, the provisions of this section do not apply if the sentencing court finds that the
359	359		340defendant:
360	360		341 (a) was under 18 years old at the time of the offense; and
361	361		342 (b) could have been adjudicated in the juvenile court but for the delayed reporting or
362	362		343delayed filing of the information.
363	363		344 Section 9. Section 76-5-205.5 is amended to read:
364	364		345 76-5-205.5. Special mitigation for mental condition or provocation -- Burden of
365	365		346proof -- Charge reduction.
366	366		347 (1) (a) As used in this section:
367	367		348 (i) (A) "Extreme emotional distress" means an overwhelming reaction of anger, shock,
368	368		349or grief that:
369	369		350 (I) causes the defendant to be incapable of reflection and restraint; and
370	370		351 (II) would cause an objectively reasonable person to be incapable of reflection and
371		-	352restraint. H.B. 385
372		-	Enrolled Copy
373		-	- 14 -
	371	+	352restraint.
374	372		353 (B) "Extreme emotional distress" does not include:
375	373		354 (I) a condition resulting from [mental illness] a mental condition; or
376	374		355 (II) distress that is substantially caused by the defendant's own conduct.
377	375		356 (ii) "Mental [illness] condition" means the same as that term is defined in Section
378	376		35776-2-305.
379	377		358 (b) The terms defined in Section 76-1-101.5 apply to this section.
380	378		359 (2) Special mitigation exists when a defendant causes the death of another individual or
381	379		360attempts to cause the death of another individual:
382	380		361 (a) (i) under circumstances that are not legally justified, but the defendant acts under a
383	381		362delusion attributable to a mental [illness] condition;
384	382		363 (ii) the nature of the delusion is such that, if the facts existed as the defendant believed
385	383		364them to be in the delusional state, those facts would provide a legal justification for the
386	384		365defendant's conduct; and
387		-	366 (iii) the defendant's actions, in light of the delusion, are reasonable from the objective
	385	+	366 (iii) the defendant's actions, in light of the delusion, are reasonable from the objective 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	386	+	- 13 -
388	387		367viewpoint of a reasonable person; or
389	388		368 (b) except as provided in Subsection (4), under the influence of extreme emotional
390	389		369distress that is predominantly caused by the victim's highly provoking act immediately
391	390		370preceding the defendant's actions.
392	391		371 (3) A defendant who is under the influence of voluntarily consumed, injected, or
393	392		372ingested alcohol, controlled substances, or volatile substances at the time of the alleged offense
394	393		373may not claim mitigation of the offense under Subsection (2)(a) on the basis of a mental
395	394		374[illness] condition if the alcohol or substance causes, triggers, or substantially contributes to the
396	395		375defendant's mental [illness] condition.
397	396		376 (4) A defendant may not claim special mitigation under Subsection (2)(b) if:
398	397		377 (a) the time period after the victim's highly provoking act and before the defendant's
399	398		378actions was long enough for an objectively reasonable person to have recovered from the
400		-	379extreme emotional distress; Enrolled Copy H.B. 385
401		-	- 15 -
	399	+	379extreme emotional distress;
402	400		380 (b) the defendant responded to the victim's highly provoking act by inflicting serious or
403	401		381substantial bodily injury on the victim over a prolonged period, or by inflicting torture on the
404	402		382victim, regardless of whether the victim was conscious during the infliction of serious or
405	403		383substantial bodily injury or torture; or
406	404		384 (c) the victim's highly provoking act, described in Subsection (2)(b), is comprised of
407	405		385words alone.
408	406		386 (5) If the trier of fact finds that the elements of aggravated murder, attempted
409	407		387aggravated murder, murder, or attempted murder are proven beyond a reasonable doubt, and
410	408		388also finds that the existence of special mitigation under this section is established by a
411	409		389preponderance of the evidence, the court shall enter a judgment of conviction in accordance
412	410		390with Subsection 76-5-202(3)(f)(i), 76-5-202(3)(f)(ii), 76-5-203(3)(b)(i), or 76-5-203(3)(b)(ii),
413	411		391respectively.
414	412		392 (6) If the issue of special mitigation is submitted to the trier of fact, the trier of fact
415	413		393shall return a special verdict at the same time as the general verdict, indicating whether it finds
416	414		394special mitigation.
417	415		395 (7) (a) If a jury is the trier of fact, a unanimous vote of the jury is required to find
418	416		396special mitigation under this section.
419		-	397 (b) If the jury unanimously finds that the elements of an offense described in
	417	+	397 (b) If the jury unanimously finds that the elements of an offense described in 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	418	+	- 14 -
420	419		398Subsection (5) are proven beyond a reasonable doubt, and finds special mitigation by a
421	420		399unanimous vote, the jury shall return a general verdict finding the defendant guilty of the
422	421		400charged crime and a special verdict indicating special mitigation.
423	422		401 (c) If the jury unanimously finds that the elements of an offense described in
424	423		402Subsection (5) are proven beyond a reasonable doubt but finds by a unanimous vote that
425	424		403special mitigation is not established, or if the jury is unable to unanimously agree that special
426	425		404mitigation is established, the jury shall convict the defendant of the greater offense for which
427	426		405the prosecution proves all the elements beyond a reasonable doubt.
428		-	406 Section 10. Section 76-5-303.5 is amended to read: H.B. 385
429		-	Enrolled Copy
430		-	- 16 -
	427	+	406 Section 10. Section 76-5-303.5 is amended to read:
431	428		407 76-5-303.5. Notification of conviction of custodial interference.
432	429		408 (1) As used in this section:
433	430		409 (a) (i) "Convicted" means a conviction by plea or verdict or adjudication in juvenile
434	431		410court of a crime or offense.
435	432		411 (ii) "Convicted" includes:
436	433		412 (A) a plea of guilty or guilty [and mentally ill] with a mental condition;
437	434		413 (B) a plea of no contest; and
438	435		414 (C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
439	436		415in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
440	437		416accordance with the plea in abeyance agreement.
441	438		417 (b) Terms defined in Section 76-1-101.5 apply to this section.
442	439		418 (2) If an individual is convicted of custodial interference under Section 76-5-303, the
443	440		419court shall notify the Driver License Division, created in Section 53-3-103, of the conviction,
444	441		420and whether the conviction is for:
445	442		421 (a) a class B misdemeanor, under Subsection 76-5-303(3)(a);
446	443		422 (b) a class A misdemeanor, under Subsection 76-5-303(3)(b); or
447	444		423 (c) a felony, under Subsection 76-5-303(3)(c).
448	445		424 Section 11. Section 76-10-1311 is amended to read:
449	446		425 76-10-1311. Mandatory testing -- Retention of offender medical file -- Civil
450	447		426liability.
451	448		427 (1) A person who has entered a plea of guilty, a plea of no contest, a plea of guilty [and
452		-	428mentally ill] with a mental condition, or been found guilty for violation of Section 76-10-1302,
	449	+	428mentally ill] with a mental condition, or been found guilty for violation of Section 76-10-1302, 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	450	+	- 15 -
453	451		42976-10-1303, or 76-10-1313 shall be required to submit to a mandatory test to determine if the
454	452		430offender is an HIV positive individual. The mandatory test shall be required and conducted
455	453		431prior to sentencing.
456	454		432 (2) If the mandatory test has not been conducted prior to sentencing, and the convicted
457		-	433offender is already confined in a county jail or state prison, such person shall be tested while in Enrolled Copy H.B. 385
458		-	- 17 -
	455	+	433offender is already confined in a county jail or state prison, such person shall be tested while in
459	456		434confinement.
460	457		435 (3) The local law enforcement agency shall cause the blood specimen of the offender as
461	458		436defined in Subsection (1) confined in county jail to be taken and tested.
462	459		437 (4) The Department of Corrections shall cause the blood specimen of the offender
463	460		438defined in Subsection (1) confined in any state prison to be taken and tested.
464	461		439 (5) The local law enforcement agency shall collect and retain in the offender's medical
465	462		440file the following data:
466	463		441 (a) the HIV infection test results;
467	464		442 (b) a copy of the written notice as provided in Section 76-10-1312;
468	465		443 (c) photographic identification; and
469	466		444 (d) fingerprint identification.
470	467		445 (6) The local law enforcement agency shall classify the medical file as a private record
471	468		446pursuant to Subsection 63G-2-302(1)(b) or a controlled record pursuant to Section 63G-2-304.
472	469		447 (7) The person tested shall be responsible for the costs of testing, unless the person is
473	470		448indigent. The costs will then be paid by the local law enforcement agency or the Department of
474	471		449Corrections from the General Fund.
475	472		450 (8) (a) The laboratory performing testing shall report test results to only designated
476	473		451officials in the Department of Corrections, the Department of Health, and the local law
477	474		452enforcement agency submitting the blood specimen.
478	475		453 (b) Each department or agency shall designate those officials by written policy.
479	476		454 (c) Designated officials may release information identifying an offender under Section
480	477		45576-10-1302, 76-10-1303, or 76-10-1313 who has tested HIV positive as provided under
481	478		456Subsection 63G-2-202(1) and for purposes of prosecution pursuant to Section 76-10-1309.
482	479		457 (9) (a) An employee of the local law enforcement agency, the Department of
483	480		458Corrections, or the Department of Health who discloses the HIV test results under this section
484		-	459is not civilly liable except when disclosure constitutes fraud or willful misconduct as provided
485		-	460in Section 63G-7-202. H.B. 385
486		-	Enrolled Copy
487		-	- 18 -
	481	+	459is not civilly liable except when disclosure constitutes fraud or willful misconduct as provided 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	482	+	- 16 -
	483	+	460in Section 63G-7-202.
488	484		461 (b) An employee of the local law enforcement agency, the Department of Corrections,
489	485		462or the Department of Health who discloses the HIV test results under this section is not civilly
490	486		463or criminally liable, except when disclosure constitutes a knowing violation of Section
491	487		46463G-2-801.
492	488		465 (10) When the medical file is released as provided in Section 63G-2-803, the local law
493	489		466enforcement agency, the Department of Corrections, or the Department of Health or its officers
494	490		467or employees are not liable for damages for release of the medical file.
495	491		468 Section 12. Section 77-13-1 is amended to read:
496	492		469 77-13-1. Kinds of pleas.
497	493		470 (1) There are five kinds of pleas to an indictment or information:
498	494		471 (a) not guilty;
499	495		472 (b) guilty;
500	496		473 (c) no contest;
501	497		474 (d) not guilty by reason of insanity; and
502	498		475 (e) guilty with a mental [illness] condition at the time of the offense.
503	499		476 (2) An alternative plea of not guilty or not guilty by reason of insanity may be entered.
504	500		477 Section 13. Section 77-16a-101 is amended to read:
505	501		478 CHAPTER 16a. COMMITMENT AND TREATMENT OF INDIVIDUALS WITH A
506	502		479 MENTAL CONDITION
507	503		480 Part 1. Plea and Verdict of Guilty with a Mental Condition
508	504		481 77-16a-101. Definitions.
509	505		482 As used in this chapter:
510	506		483 (1) "Board" means the Board of Pardons and Parole established under Section 77-27-2.
511	507		484 (2) "Department" means the Department of Health and Human Services.
512	508		485 (3) "Executive director" means the executive director of the Department of Health and
513	509		486Human Services.
514		-	487 (4) "Forensic evaluator" means a licensed mental health professional who is: Enrolled Copy H.B. 385
515		-	- 19 -
	510	+	487 (4) "Forensic evaluator" means a licensed mental health professional who is:
516	511		488 (a) not involved in the defendant's treatment; and
517	512		489 (b) trained and qualified to conduct a guilty with a mental condition evaluation.
518		-	490 (5) "Mental condition" means the same as that term is defined in Section 76-2-305.
	513	+	490 (5) "Mental condition" means the same as that term is defined in Section 76-2-305. 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	514	+	- 17 -
519	515		491 (6) "Mental disability" means the same as that term is defined in Section 76-2-305.
520	516		492 [(4)] (7) "Mental health facility" means the Utah State Hospital or other facility that
521	517		493provides mental health services under contract with the division, a local mental health
522	518		494authority, or organization that contracts with a local mental health authority.
523	519		495 (8) "Mental health supervision" includes regular and periodic activities including:
524	520		496 (a) the review of a defendant's assessment, diagnostic formulation, individual service
525	521		497plan development, and progress toward completion of care; and
526	522		498 (b) identification of barriers to a defendant's care, assistance in removing barriers to a
527	523		499defendant's care, continuation of services to a defendant, authorization of care for a defendant,
528	524		500and the observation of the delivery of clinical care to a defendant.
529	525		501 [(5)] (9) "Mental illness" [is as] means the same as that term is defined in Section
530	526		50276-2-305.
531	527		503 [(6)] (10) "Offender with a mental [illness] condition" means an individual who has
532	528		504been adjudicated guilty with a mental [illness, including an individual who has an intellectual
533	529		505disability] condition.
534	530		506 (11) "Secure setting" means a jail, prison, or locked inpatient medical facility approved
535	531		507by the department.
536	532		508 [(7)] (12) "UDC" means the Department of Corrections.
537	533		509 Section 14. Section 77-16a-102 is amended to read:
538	534		510 77-16a-102. Jury instructions.
539	535		511 (1) If a defendant asserts a defense of not guilty by reason of insanity, the court shall
540	536		512instruct the jury that the jury may find the defendant:
541	537		513 (a) guilty;
542		-	514 (b) guilty with a mental [illness] condition at the time of the offense; H.B. 385
543		-	Enrolled Copy
544		-	- 20 -
	538	+	514 (b) guilty with a mental [illness] condition at the time of the offense;
545	539		515 (c) guilty of a lesser offense;
546	540		516 (d) guilty of a lesser offense with a mental [illness] condition at the time of the offense;
547	541		517 (e) not guilty by reason of insanity; or
548	542		518 (f) not guilty.
549	543		519 (2) (a) When a defendant asserts a mental defense pursuant to Section 76-2-305 or
550	544		520asserts special mitigation reducing the level of an offense pursuant to Subsection
551		-	52176-5-205.5(2)(a), or when the evidence raises the issue and either party requests the instruction,
	545	+	52176-5-205.5(2)(a), or when the evidence raises the issue and either party requests the instruction, 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	546	+	- 18 -
552	547		522the court shall instruct the jury that if the jury finds a defendant guilty by proof beyond a
553	548		523reasonable doubt of a charged offense or lesser included offense, the jury shall also return a
554	549		524special verdict indicating whether the jury finds that the defendant had a mental [illness]
555	550		525condition at the time of the offense.
556	551		526 (b) If the jury finds the defendant guilty of the charged offense by proof beyond a
557	552		527reasonable doubt, and by special verdict finds the defendant had a mental [illness] condition at
558	553		528the time of the offense, the jury shall return the general verdict of "guilty with a mental [illness]
559	554		529condition at the time of the offense."
560	555		530 (c) If the jury finds the defendant guilty of a lesser offense by proof beyond a
561	556		531reasonable doubt, and by special verdict finds the defendant had a mental [illness] condition at
562	557		532the time of the offense, the jury shall return the general verdict of "guilty of a lesser offense
563	558		533with a mental [illness] condition at the time of the offense."
564	559		534 (d) If the jury finds the defendant guilty of the charged offense or a lesser included
565	560		535offense and does not find that the defendant had a mental [illness] condition at the time of the
566	561		536offense, the jury shall return a verdict of "guilty" of the offense, along with the special verdict
567	562		537form indicating that the jury did not find that the defendant had a mental [illness] condition at
568	563		538the time of the offense.
569	564		539 (e) The special verdict shall be returned by the jury at the same time as the general
570	565		540verdict, to indicate the basis for the jury's general verdict.
571		-	541 (3) (a) In determining whether a defendant should be found guilty with a mental Enrolled Copy H.B. 385
572		-	- 21 -
	566	+	541 (3) (a) In determining whether a defendant should be found guilty with a mental
573	567		542[illness] condition at the time of the offense, the court shall instruct the jury that the standard of
574	568		543proof applicable to a finding of mental [illness] condition is by a preponderance of the
575	569		544evidence.
576	570		545 (b) The court shall also instruct the jury that the standard of preponderance of the
577	571		546evidence does not apply to the elements establishing a defendant's guilt, and that the proof of
578	572		547the elements establishing a defendant's guilt of an offense must be proven beyond a reasonable
579	573		548doubt.
580	574		549 (4) (a) When special mitigation based on extreme emotional distress is at issue
581	575		550pursuant to Subsection 76-5-205.5(2)(b), the jury shall, in addition to the jury's general verdict,
582	576		551return a special verdict.
583		-	552 (b) The special verdict shall be returned by the jury at the same time as the general
	577	+	552 (b) The special verdict shall be returned by the jury at the same time as the general 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	578	+	- 19 -
584	579		553verdict, to indicate the basis for the jury's general verdict.
585	580		554 Section 15. Section 77-16a-103 is repealed and reenacted to read:
586	581		555 77-16a-103. Plea of guilty with a mental condition-- Procedures -- Sentencing --
587	582		556Reduction -- Costs.
588	583		557 (1) (a) (i) If a defendant wishes to enter a plea of guilty with a mental condition, the
589	584		558parties may stipulate as to:
590	585		559 (A) whether the defendant had a mental condition at the time of the commission of the
591	586		560offense; and
592	587		561 (B) whether the defendant could benefit from supervision or treatment.
593	588		562 (ii) If the parties stipulate as described in Subsection (1)(a)(i), the court shall enter
594	589		563findings consistent with the parties' stipulation if the stipulation is supported by sufficient
595	590		564evidence.
596	591		565 (b) If the parties do not stipulate to Subsection (1)(a)(i), the court shall hold a hearing
597	592		566and determine, by clear and convincing evidence:
598	593		567 (i) whether the defendant had a mental condition at the time of the commission of the
599		-	568offense; and H.B. 385
600		-	Enrolled Copy
601		-	- 22 -
	594	+	568offense; and
602	595		569 (ii) whether the defendant could benefit from supervision or treatment.
603	596		570 (c) After reviewing the stipulation described in Subsection (1)(a)(i) or conducting a
604	597		571hearing under Subsection (1)(b):
605	598		572 (i) if the court finds that the defendant had a mental condition at the time of the
606	599		573offense, the court shall accept the defendant's plea of guilty with a mental condition; or
607	600		574 (ii) if the court finds that the defendant did not have a mental condition at the time of
608	601		575the offense, the court may not accept the defendant's plea of guilty with a mental condition.
609	602		576 (2) (a) If a defendant wishes to enter a plea of guilty with a mental condition for a
610	603		577felony offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
611	604		578hearing described in Subsection (1)(b), the court may order the defendant to submit to an
612	605		579examination, which may be conducted only by a forensic evaluator appointed by the
613	606		580department, to determine:
614	607		581 (i) whether the defendant had a mental condition at the time of the commission of the
615	608		582offense;
616		-	583 (ii) whether the defendant could benefit from supervision or treatment; or
	609	+	583 (ii) whether the defendant could benefit from supervision or treatment; or 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	610	+	- 20 -
617	611		584 (iii) whether the defendant currently is competent to enter a plea.
618	612		585 (b) (i) If a defendant wishes to enter a plea of guilty with a mental condition for a
619	613		586misdemeanor offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
620	614		587hearing described in Subsection (1)(b), the court may order the defendant to submit to an
621	615		588examination by a forensic evaluator.
622	616		589 (ii) Unless otherwise ordered by the court, the examination described in Subsection
623	617		590(2)(b)(i) shall determine:
624	618		591 (A) whether the defendant had a mental condition at the time of the commission of the
625	619		592offense;
626	620		593 (B) whether the defendant could benefit from supervision or treatment; or
627	621		594 (C) whether the defendant currently is competent to enter a plea.
628		-	595 (3) If a defendant relies on a private mental health evaluation in support of the Enrolled Copy H.B. 385
629		-	- 23 -
	622	+	595 (3) If a defendant relies on a private mental health evaluation in support of the
630	623		596defendant's plea of guilty with a mental condition and the parties do not stipulate to Subsection
631	624		597(1)(a)(i), upon the request of the prosecutor before the hearing described in Subsection (1)(b),
632	625		598the court shall order the defendant to submit to an examination by:
633	626		599 (a) the department if the offense is a felony; or
634	627		600 (b) the department or a forensic evaluator if the offense is a misdemeanor.
635	628		601 (4) If a court finds that a defendant was guilty with a mental condition at the time of
636	629		602the offense in accordance with Subsection (1)(c)(i) but would not benefit from available
637	630		603supervision or treatment, the court shall hold a sentencing hearing within 45 days of the entry
638	631		604of the defendant's plea of guilty with a mental condition.
639	632		605 (5) (a) If a court finds that a defendant had a mental condition at the time of the
640	633		606commission of the offense, the defendant could benefit from supervision or treatment, and has
641	634		607entered a plea of guilty with a mental condition in accordance with Subsection (1)(c)(i), the
642	635		608court:
643	636		609 (i) shall order:
644	637		610 (A) the department to provide a treatment assessment of the defendant and to submit to
645	638		611the court treatment recommendations for the defendant; or
646	639		612 (B) the defendant to arrange for a treatment assessment of the defendant with a private
647	640		613provider and for the private provider to submit to the court treatment recommendations for the
648		-	614defendant;
	641	+	614defendant; 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	642	+	- 21 -
649	643		615 (ii) shall schedule a treatment review hearing within 30 days after the day on which the
650	644		616court entered the plea of guilty with a mental condition; and
651	645		617 (iii) may defer sentencing for up to one year in accordance with Subsection (6), if the
652	646		618defendant consents to a deferred sentence.
653	647		619 (b) At the treatment review hearing described in Subsection (5)(a)(ii), the court shall:
654	648		620 (i) consider all available diagnosis, treatment, and supervision recommendations;
655	649		621 (ii) if a party does not agree with treatment recommendations issued by the department
656		-	622under Subsection (5)(a)(i)(A), hold a hearing on the issue of the department's recommendations H.B. 385
657		-	Enrolled Copy
658		-	- 24 -
	650	+	622under Subsection (5)(a)(i)(A), hold a hearing on the issue of the department's recommendations
659	651		623and make appropriate modifications to the recommendations if necessary; and
660	652		624 (iii) order the defendant to comply with all treatment and supervision recommendations
661	653		625that the court finds are in the best interest of the defendant and public safety.
662	654		626 (c) (i) In determining treatment and supervision recommendations under Subsection
663	655		627(5)(b), the court may order the defendant to be placed in a secure setting as described in
664	656		628Subsections (5)(c)(ii) and (iii) if the court finds that the placement would be in the best interest
665	657		629of the defendant, a victim of the defendant, or public safety.
666	658		630 (ii) (A) If the offense is a class C misdemeanor, the court may not place the defendant
667	659		631in a secure setting for more than 90 days.
668	660		632 (B) If the offense is a class B misdemeanor, the court may not place the defendant in a
669	661		633secure setting for more than six months.
670	662		634 (C) If the offense is a class A misdemeanor or a felony, the court may place the
671	663		635defendant in a secure setting for up to one year.
672	664		636 (iii) The court shall, before making a determination as to a secure setting placement,
673	665		637notify the executive director of the proposed placement and provide the department with an
674	666		638opportunity to:
675	667		639 (A) evaluate the defendant; and
676	668		640 (B) make a recommendation regarding placement to the court.
677	669		641 (d) If the court determines that the defendant is eligible for supervised release as part of
678	670		642the defendant's treatment and supervision recommendations under Subsection (5)(b), except as
679	671		643provided in Section 76-3-406, the court may order:
680	672		644 (i) if the offense is a felony:
681		-	645 (A) supervision by Adult Probation and Parole for a period of up to one year in
	673	+	645 (A) supervision by Adult Probation and Parole for a period of up to one year in 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	674	+	- 22 -
682	675		646accordance with the applicable supervision provisions described in Title 64, Chapter 13,
683	676		647Department of Corrections - State Prison; or
684	677		648 (B) supervision including mental health supervision by a public or private entity that
685		-	649provides mental or behavioral health services and is approved by the department or the court; Enrolled Copy H.B. 385
686		-	- 25 -
	678	+	649provides mental or behavioral health services and is approved by the department or the court;
687	679		650or
688	680		651 (ii) if the offense is a misdemeanor, supervision including mental health supervision
689	681		652by:
690	682		653 (A) a local mental health authority; or
691	683		654 (B) a public or private entity that provides mental or behavioral health services and is
692	684		655approved by the department or the court.
693	685		656 (e) (i) After the initial review hearing described in Subsection (5)(a), the court shall
694	686		657hold periodic review hearings approximately every 90 days, the frequency of which may be
695	687		658modified by the court.
696	688		659 (ii) At a review hearing described in Subsection (5)(e)(i):
697	689		660 (A) the department or the department's designee shall report on the progress of the
698	690		661defendant, provide recommendations for the defendant's future care, treatment, and secure or
699	691		662unsecure placement, and advise the court on the medical necessity of treatments for the
700	692		663defendant;
701	693		664 (B) the court shall review the status of the defendant and determine whether any
702	694		665changes are needed to the defendant's supervision or treatment plan; and
703	695		666 (C) a party may request, if the party has a good faith basis, that the court review or
704	696		667change the defendant's placement within a secure or non-secure setting.
705	697		668 (f) If a defendant is willfully non-compliant with the treatment or supervision ordered
706	698		669by the court under this Subsection (5), the court shall hold an order to show cause hearing to
707	699		670determine whether the court should:
708	700		671 (i) proceed with sentencing under Subsection (6);
709	701		672 (ii) change the defendant's placement to a secure setting;
710	702		673 (iii) impose another sanction; or
711	703		674 (iv) take no action.
712	704		675 (6) (a) The court shall defer sentencing for a defendant who has pleaded guilty with a
713		-	676mental condition as described in Subsection (5) until: H.B. 385
714		-	Enrolled Copy
715		-	- 26 -
	705	+	676mental condition as described in Subsection (5) until: 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	706	+	- 23 -
716	707		677 (i) the court determines, after an order to show cause hearing or a review hearing as
717	708		678described in Subsection (5), that:
718	709		679 (A) the defendant is willfully non-compliant with treatment or supervision and is
719	710		680unlikely to become compliant with further ordered treatment or supervision; or
720	711		681 (B) the defendant has reached the maximum benefit of treatment and supervision; or
721	712		682 (ii) one year has elapsed after the day on which the court entered the defendant's plea of
722	713		683guilty with a mental condition.
723	714		684 (b) At the sentencing hearing, the court shall:
724	715		685 (i) consider all treatment and supervision that has occurred before the sentencing
725	716		686hearing in the defendant's case;
726	717		687 (ii) credit any time the defendant has spent in a mental health facility or other
727	718		688residential treatment facility or a secure facility against the defendant's sentence;
728	719		689 (iii) consider victim input;
729	720		690 (iv) consider the best interests of the defendant, including which sentence will help
730	721		691prevent the defendant:
731	722		692 (A) from losing the defendant's ability to control the defendant's state of mental health;
732	723		693and
733	724		694 (B) from committing additional criminal conduct related to the defendant's mental
734	725		695condition;
735	726		696 (v) consider the best interest of public safety; and
736	727		697 (vi) consider any other relevant factor or circumstance.
737	728		698 (7) Except as provided in Subsection (7)(c), after a defendant who has been sentenced
738	729		699under Subsection (6) has completed the defendant's sentence and any probation or parole:
739	730		700 (a) notwithstanding the contrary provisions in Subsection 76-3-402(4) or 76-3-406(1),
740	731		701the court has jurisdiction to enter a judgment of conviction and shall reduce the judgment of
741	732		702conviction for the offense by two degrees from the original offense; and
742		-	703 (b) notwithstanding the contrary provisions in Subsection 76-3-402(4) or 76-3-406(1), Enrolled Copy H.B. 385
743		-	- 27 -
	733	+	703 (b) notwithstanding the contrary provisions in Subsection 76-3-402(4) or 76-3-406(1),
744	734		704if the prosecuting attorney specifically agrees in writing or on the court record at any time, the
745	735		705court has jurisdiction to consider and enter a judgment of conviction and may enter a judgment
746	736		706of conviction for the offense that is reduced by up to three degrees from the original offense.
747		-	707 (c) If a defendant's probation is revoked and any suspended sentence is imposed, the
	737	+	707 (c) If a defendant's probation is revoked and any suspended sentence is imposed, the 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	738	+	- 24 -Senate Committee Amendments 2-27-2023 lp/jr
748	739		708defendant may not receive a reduction under this Subsection (7).
749	740		709 (8) (a) (i) Except as provided in Subsection (8)(a)(iv), when the offense is a state
750	741		710offense, expenses of examination, observation, and treatment for the defendant shall be paid by
751	742		711the department when not paid for by the defendant's insurance.
752	743		712 (ii) Travel expenses shall be paid by the county where prosecution is commenced.
753	744		713 (iii) Expenses of examination for a defendant charged with a violation of a municipal
754	745		714or county ordinance shall be paid by the municipality or county that commenced the
755	746		715prosecution.
756	747		716 (iv) The department is not responsible for payment for an evaluation described in
757	748		717Subsection (3)(b) that is conducted by a forensic evaluator who is privately retained by a party.
758	749		718 (b) (i) Provisions in this part for the support at public expense of a defendant with a
759	750		719mental condition do not release an insurer of a defendant with a mental condition from liability
760	751		720for the care or treatment of the defendant with a mental condition.
761	752		721 (ii) The department is authorized to collect amounts spent on a defendant with a mental
762	753		722condition from an insurer of the defendant with a mental condition.
763	754		723 (iii) A health insurance company may not deny coverage for court-ordered treatment or
764		-	724supervision of a defendant with a mental condition solely based on the fact that the treatment or
765		-	725supervision is ordered by a court if the treatment or supervision is medically necessary and
766		-	726would otherwise be a covered benefit under the defendant's insurance plan.
	755	+	724supervision of a defendant with a mental condition Öº [that] solely based on the fact that the
	756	+	724atreatment or supervision is ordered by a court if the treatment or supervision is medically
	757	+	724bnecessary and »Ö would otherwise be a covered benefit
	758	+	725under the defendant's insurance plan Öº [based on the fact that the treatment or supervision is
	759	+	726ordered by a court] »Ö .
767	760		727 Section 16. Section 77-16a-104 is amended to read:
768	761		728 77-16a-104. Verdict of guilty with a mental condition -- Hearing to determine
769	762		729present mental state.
770		-	730 (1) Upon a verdict of guilty with a mental [illness] condition for the offense charged, or H.B. 385
771		-	Enrolled Copy
772		-	- 28 -
	763	+	730 (1) Upon a verdict of guilty with a mental [illness] condition for the offense charged, or
773	764		731any lesser offense, the court shall conduct a hearing to determine the defendant's present mental
774	765		732state.
775	766		733 (2) (a) The court may order the department to examine the defendant to determine the
776	767		734defendant's mental condition, and may receive the evidence of any public or private expert
777	768		735witness offered by the defendant or the prosecutor.
778	769		736 (b) The defendant may be placed in the Utah State Hospital for [that] the examination
779	770		737described in Subsection (2)(a) only upon approval of the executive director.
780		-	738 (3) If the court finds by clear and convincing evidence that the defendant currently has
	771	+	738 (3) If the court finds by clear and convincing evidence that the defendant currently has 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	772	+	- 25 -
781	773		739a mental [illness] condition, the court shall impose any sentence that could be imposed under
782	774		740law upon a defendant who does not have a mental [illness] condition and who is convicted of
783	775		741the same offense, and:
784	776		742 (a) commit the defendant to the department, in accordance with the provisions of
785	777		743Section 77-16a-202, if:
786	778		744 (i) the court gives the department the opportunity to provide an evaluation and
787	779		745recommendation under Subsection (4); and
788	780		746 (ii) the court finds by clear and convincing evidence that:
789	781		747 (A) because of the defendant's mental [illness] condition the defendant poses an
790	782		748immediate physical danger to self or others, including jeopardizing the defendant's own or
791	783		749others' safety, health, or welfare if placed in a correctional or probation setting, or lacks the
792	784		750ability to provide the basic necessities of life, such as food, clothing, and shelter, if placed on
793	785		751probation; and
794	786		752 (B) the department is able to provide the defendant with treatment, care, custody, and
795	787		753security that is adequate and appropriate to the defendant's conditions and needs;
796	788		754 (b) order probation in accordance with Section 77-16a-201; or
797	789		755 (c) if the court determines that commitment to the department under Subsection (3)(a)
798	790		756or probation under Subsection (3)(b) is not appropriate, the court shall place the defendant in
799		-	757the custody of UDC or a county jail as allowed by law. Enrolled Copy H.B. 385
800		-	- 29 -
	791	+	757the custody of UDC or a county jail as allowed by law.
801	792		758 (4) In order to [insure] ensure that the requirements of Subsection (3)(a) are met, the
802	793		759court shall, before making a determination, notify the executive director of the proposed
803	794		760placement and provide the department with an opportunity to evaluate the defendant and make
804	795		761a recommendation to the court regarding placement prior to commitment.
805	796		762 (5) If the court finds that the defendant does not currently have a mental [illness]
806	797		763condition, the court shall sentence the defendant as it would any other defendant.
807	798		764 (6) Expenses for examinations ordered under this section shall be paid in accordance
808	799		765with Subsection [77-16a-103(5)] 77-16a-103(8).
809	800		766 Section 17. Section 77-16a-201 is amended to read:
810	801		767 Part 2. Disposition of Defendants Found Guilty with a Mental Condition
811	802		768 77-16a-201. Probation.
812		-	769 (1) (a) In felony cases, when the court proposes to place on probation a defendant who
	803	+	769 (1) (a) In felony cases, when the court proposes to place on probation a defendant who 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	804	+	- 26 -
813	805		770has pled or is found guilty with a mental [illness] condition at the time of the offense, it shall
814	806		771request UDC to provide a presentence investigation report regarding whether probation is
815	807		772appropriate for that defendant and, if so, recommending a specific treatment program. If the
816	808		773defendant is placed on probation, that treatment program shall be made a condition of
817	809		774probation, and the defendant shall remain under the jurisdiction of the sentencing court.
818	810		775 (b) The court may not place an offender who has been convicted of the felony offenses
819	811		776listed in Section 76-3-406 on probation, regardless of whether the offender has, or had, a
820	812		777mental [illness] condition.
821	813		778 (2) The period of probation for a felony offense committed by a defendant who has
822	814		779been found guilty with a mental [illness] condition at the time of the offense may not be
823	815		780subsequently reduced by the sentencing court without consideration of an updated report on the
824	816		781mental health status of the defendant.
825	817		782 (3) (a) Treatment ordered by the court under this section may be provided by or under
826	818		783contract with the department, a mental health facility, a local mental health authority, or, with
827		-	784the approval of the sentencing court, any other public or private mental health provider. H.B. 385
828		-	Enrolled Copy
829		-	- 30 -
	819	+	784the approval of the sentencing court, any other public or private mental health provider.
830	820		785 (b) The entity providing treatment under this section shall file a report with the
831	821		786defendant's probation officer at least every six months during the term of probation.
832	822		787 (c) Any request for termination of probation regarding a defendant who is receiving
833	823		788treatment under this section shall include a current mental health report prepared by the
834	824		789treatment provider.
835	825		790 (4) Failure to continue treatment or any other condition of probation, except by
836	826		791agreement with the entity providing treatment and the sentencing court, is a basis for initiating
837	827		792probation violation hearings.
838	828		793 (5) The court may not release an offender with a mental [illness] condition into the
839	829		794community, as a part of probation, if it finds by clear and convincing evidence that the
840	830		795offender:
841	831		796 (a) poses an immediate physical danger to self or others, including jeopardizing the
842	832		797offender's own or others' safety, health, or welfare if released into the community; or
843	833		798 (b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
844	834		799shelter, if released into the community.
845		-	800 (6) An offender with a mental [illness] condition who is not eligible for release into the
	835	+	800 (6) An offender with a mental [illness] condition who is not eligible for release into the 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	836	+	- 27 -
846	837		801community under the provisions of Subsection (5) may be placed by the court, on probation, in
847	838		802an appropriate mental health facility.
848	839		803 Section 18. Section 77-16a-202 is amended to read:
849	840		804 77-16a-202. Person found guilty with a mental condition-- Commitment to
850	841		805department -- Admission to Utah State Hospital.
851	842		806 (1) In sentencing and committing an offender with a mental [illness] condition to the
852	843		807department under Subsection 77-16a-104(3)(a) or in a felony case under Subsection
853	844		80877-16a-103(6), the court shall:
854	845		809 (a) sentence the offender to a term of imprisonment and order that [he] the offender be
855	846		810committed to the department and admitted to the Utah State Hospital for care and treatment
856		-	811until transferred to UDC in accordance with Sections 77-16a-203 and 77-16a-204, making Enrolled Copy H.B. 385
857		-	- 31 -
	847	+	811until transferred to UDC in accordance with Sections 77-16a-203 and 77-16a-204, making
858	848		812provision for readmission to the Utah State Hospital whenever the requirements and conditions
859	849		813of Section 77-16a-204 are met; or
860	850		814 (b) [sentence the offender to a term of imprisonment and] order that the offender be
861	851		815committed to the department for care and treatment for no more than 18 months, or until the
862	852		816offender's condition has been stabilized to the point that commitment to the department and
863	853		817admission to the Utah State Hospital is no longer necessary to ensure adequate mental health
864	854		818treatment, whichever occurs first. At the expiration of that time, the court [may recall the
865	855		819sentence and commitment, and resentence] shall sentence the offender. A [commitment and]
866	856		820retention of jurisdiction under this Subsection (1)(b) shall be specified in [the sentencing order.
867	857		821If that specification is not included in the sentencing order, the offender shall be committed in
868	858		822accordance with Subsection (1)(a).] a court order.
869	859		823 (2) The court may not retain jurisdiction, under Subsection (1)(b), over the sentence of
870	860		824an offender with a mental [illness] condition who has been convicted of a capital felony. In
871	861		825capital cases, the court shall make the findings required by this section after the capital
872	862		826sentencing proceeding mandated by Section 76-3-207.
873	863		827 (3) When an offender is committed to the department and admitted to the Utah State
874	864		828Hospital under Subsection (1)(b), the department shall provide the court with reports of the
875	865		829offender's mental health status every six months. Those reports shall be prepared in accordance
876	866		830with the requirements of Section 77-16a-203. Additionally, the court may appoint an
877		-	831independent examiner to assess the mental health status of the offender.
	867	+	831independent examiner to assess the mental health status of the offender. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	868	+	- 28 -
878	869		832 (4) The period of commitment to the department and admission to the Utah State
879	870		833Hospital, and any subsequent retransfers to the Utah State Hospital made pursuant to Section
880	871		83477-16a-204 may not exceed the maximum sentence imposed by the court. Upon expiration of
881	872		835that sentence, the administrator of the facility where the offender is located may initiate civil
882	873		836proceedings for involuntary commitment in accordance with Title 62A, Chapter 5, Services for
883	874		837People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act.
884		-	838 Section 19. Section 77-16a-203 is amended to read: H.B. 385
885		-	Enrolled Copy
886		-	- 32 -
	875	+	838 Section 19. Section 77-16a-203 is amended to read:
887	876		839 77-16a-203. Review of offenders with a mental condition committed to
888	877		840department -- Recommendations for transfer to Department of Corrections.
889	878		841 (1) (a) The executive director shall designate a review team of at least three qualified
890	879		842staff members, including at least one licensed psychiatrist, to evaluate the mental condition of
891	880		843each offender with a mental [illness] condition committed to it in accordance with Section
892	881		84477-16a-202, at least once every six months.
893	882		845 (b) If the offender has an intellectual disability, the review team shall include at least
894	883		846one individual who is a designated intellectual disability professional, as defined in Section
895	884		84762A-5-101.
896	885		848 (2) At the conclusion of [its] the review team's evaluation, the review team described
897	886		849in Subsection (1) shall make a report to the executive director:
898	887		850 (a) regarding the offender's:
899	888		851 (i) current mental condition;
900	889		852 (ii) progress since commitment; and
901	890		853 (iii) prognosis; and
902	891		854 (b) that includes a recommendation regarding whether the offender with a mental
903	892		855[illness] condition should be:
904	893		856 (i) transferred to UDC; or
905	894		857 (ii) remain in the custody of the department.
906	895		858 (3) (a) The executive director shall notify the UDC medical administrator and the
907	896		859board's mental health adviser that an offender with a mental [illness] condition is eligible for
908	897		860transfer to UDC if the review team finds that the offender:
909	898		861 (i) no longer has a mental [illness] condition; or
910		-	862 (ii) has a mental [illness] condition and may continue to be a danger to self or others,
	899	+	862 (ii) has a mental [illness] condition and may continue to be a danger to self or others, 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	900	+	- 29 -
911	901		863but can be controlled if adequate care, medication, and treatment are provided by UDC; and
912	902		864 (iii) the offender's condition has been stabilized to the point that commitment to the
913		-	865department and admission to the Utah State Hospital are no longer necessary to ensure Enrolled Copy H.B. 385
914		-	- 33 -
	903	+	865department and admission to the Utah State Hospital are no longer necessary to ensure
915	904		866adequate mental health treatment.
916	905		867 (b) The administrator of the mental health facility where the offender is located shall
917	906		868provide the UDC medical administrator with a copy of the reviewing staff's recommendation
918	907		869and:
919	908		870 (i) all available clinical facts;
920	909		871 (ii) the diagnosis;
921	910		872 (iii) the course of treatment received at the mental health facility;
922	911		873 (iv) the prognosis for remission of symptoms;
923	912		874 (v) the potential for recidivism;
924	913		875 (vi) an estimation of the offender's dangerousness, either to self or others; and
925	914		876 (vii) recommendations for future treatment.
926	915		877 Section 20. Section 77-16a-204 is amended to read:
927	916		878 77-16a-204. UDC acceptance of transfer of persons found guilty with a mental
928	917		879condition -- Retransfer from UDC to department for admission to the Utah State
929	918		880Hospital.
930	919		881 (1) The UDC medical administrator shall designate a transfer team of at least three
931	920		882qualified staff members, including at least one licensed psychiatrist, to evaluate the
932	921		883recommendation made by the department's review team pursuant to Section 77-16a-203. If the
933	922		884offender has an intellectual disability, the transfer team shall include at least one person who
934	923		885has expertise in testing and diagnosis of people with intellectual disabilities.
935	924		886 (2) The transfer team shall concur in the recommendation if the transfer team
936	925		887determines that UDC can provide the offender with a mental [illness] condition with adequate
937	926		888mental health treatment.
938	927		889 (3) The UDC transfer team and medical administrator shall recommend the facility in
939	928		890which the offender should be placed and the treatment to be provided in order for the offender's
940	929		891mental condition to remain stabilized to the director of the Division of Institutional Operations,
941		-	892within the Department of Corrections. H.B. 385
942		-	Enrolled Copy
943		-	- 34 -
944		-	893 (4) In the event that the department and UDC do not agree on the transfer of an
	930	+	892within the Department of Corrections.
	931	+	893 (4) In the event that the department and UDC do not agree on the transfer of an 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	932	+	- 30 -
945	933		894offender with a mental [illness] condition, the administrator of the mental health facility where
946	934		895the offender is located shall notify the mental health adviser for the board, in writing, of the
947	935		896dispute. The mental health adviser shall be provided with copies of all reports and
948	936		897recommendations. The board's mental health adviser shall make a recommendation to the
949	937		898board on the transfer and the board shall issue its decision within 30 days.
950	938		899 (5) UDC shall notify the board whenever an offender with a mental [illness] condition
951	939		900is transferred from the department to UDC.
952	940		901 (6) When an offender with a mental [illness] condition sentenced under Section
953	941		90277-16a-202, who has been transferred from the department to UDC, and accepted by UDC, is
954	942		903evaluated and it is determined that the offender's mental condition has deteriorated or that the
955	943		904offender has become mentally unstable, the offender may be readmitted to the Utah State
956	944		905Hospital in accordance with the findings and procedures described in Section 62A-15-605.5.
957	945		906 (7) Any [person] individual readmitted to the Utah State Hospital pursuant to
958	946		907Subsection (6) shall remain in the custody of UDC, and the state hospital shall act solely as the
959	947		908agent of UDC.
960	948		909 (8) An offender with a mental [illness] condition who has been readmitted to the Utah
961	949		910State Hospital pursuant to Subsection (6) shall be transferred back to UDC in accordance with
962	950		911the provisions of Section 77-16a-203.
963	951		912 Section 21. Section 77-16a-205 is amended to read:
964	952		913 77-16a-205. Parole.
965	953		914 (1) When an offender with a mental [illness] condition who has been committed to the
966	954		915department becomes eligible to be considered for parole, the board shall request a
967	955		916recommendation from the executive director and from UDC before placing the offender on
968	956		917parole.
969	957		918 (2) Before setting a parole date, the board shall request that its mental health adviser
970		-	919prepare a report regarding the offender with a mental [illness] condition, including: Enrolled Copy H.B. 385
971		-	- 35 -
	958	+	919prepare a report regarding the offender with a mental [illness] condition, including:
972	959		920 (a) all available clinical facts;
973	960		921 (b) the diagnosis;
974	961		922 (c) the course of treatment received at the mental health facility;
975	962		923 (d) the prognosis for remission of symptoms;
976		-	924 (e) potential for recidivism;
	963	+	924 (e) potential for recidivism; 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	964	+	- 31 -
977	965		925 (f) an estimation of the dangerousness of the offender with a mental [illness] condition
978	966		926either to self or others; and
979	967		927 (g) recommendations for future treatment.
980	968		928 (3) Based on the report described in Subsection (2), the board may place the offender
981	969		929with a mental [illness] condition on parole. The board may require mental health treatment as
982	970		930a condition of parole. If treatment is ordered, failure to continue treatment, except by
983	971		931agreement with the treatment provider, and the board, is a basis for initiation of parole
984	972		932violation hearings by the board.
985	973		933 (4) UDC, through Adult Probation and Parole, shall monitor the status of an offender
986	974		934with a mental [illness] condition who has been placed on parole. UDC may provide treatment
987	975		935by contracting with the department, a local mental health authority, any other public or private
988	976		936provider, or in-house staff.
989	977		937 (5) The board may not subsequently reduce the period of parole without considering an
990	978		938updated report on the offender's current mental condition.
991	979		939 Section 22. Section 77-16a-301 is amended to read:
992	980		940 77-16a-301. Mental examination of defendant.
993	981		941 (1) (a) When the court receives notice that a defendant intends to claim that the
994	982		942defendant is not guilty by reason of insanity or that the defendant had diminished mental
995	983		943capacity, or that the defendant intends to assert special mitigation under Subsection
996	984		94476-5-205.5(2)(a), the court shall order the department to examine the defendant and investigate
997	985		945the defendant's mental condition.
998		-	946 (b) The person or organization directed by the department to conduct the examination H.B. 385
999		-	Enrolled Copy
1000		-	- 36 -
	986	+	946 (b) The person or organization directed by the department to conduct the examination
1001	987		947shall testify at the request of the court or either party in a proceeding in which the testimony is
1002	988		948otherwise admissible.
1003	989		949 (c) Pending trial, unless the court or the executive director directs otherwise, the
1004	990		950defendant shall be retained in the same custody or status the defendant was in at the time the
1005	991		951examination was ordered.
1006	992		952 (2) (a) The defendant shall be available and shall fully cooperate in the examination by
1007	993		953the department and other independent examiners for the defense and the prosecuting attorney.
1008	994		954 (b) If the defendant fails to be available and to fully cooperate, and that failure is
1009		-	955established to the satisfaction of the court at a hearing prior to trial, the defendant is barred
	995	+	955established to the satisfaction of the court at a hearing prior to trial, the defendant is barred 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	996	+	- 32 -
1010	997		956from presenting expert testimony relating to the defendant's defense of a mental [illness]
1011	998		957condition at the trial of the case.
1012	999		958 (c) The department shall complete the examination within 30 days after the court's
1013	1000		959order, and shall prepare and provide to the court prosecutor and defense counsel a written
1014	1001		960report concerning the condition of the defendant.
1015	1002		961 (3) Within 10 days after receipt of the report described in Subsection (2)(c) from the
1016	1003		962department, but not later than five days before the trial of the case, or at any other time the
1017	1004		963court directs, the prosecuting attorney shall file and serve upon the defendant a notice of
1018	1005		964rebuttal of the defense of a mental [illness] condition, which shall contain the names of
1019	1006		965witnesses the prosecuting attorney proposes to call in rebuttal.
1020	1007		966 (4) The report of another independent examiner is admissible as evidence upon
1021	1008		967stipulation of the prosecution and defense.
1022	1009		968 (5) (a) This section does not prevent a party from producing other testimony as to the
1023	1010		969mental condition of the defendant.
1024	1011		970 (b) An expert witness who is not appointed by the court is not entitled to compensation
1025	1012		971under Subsection (7).
1026	1013		972 (6) This section does not require the admission of evidence not otherwise admissible.
1027		-	973 (7) (a) The department shall pay the expenses of an examination ordered by the court Enrolled Copy H.B. 385
1028		-	- 37 -
	1014	+	973 (7) (a) The department shall pay the expenses of an examination ordered by the court
1029	1015		974under this section.
1030	1016		975 (b) The department shall charge the county where the prosecution is commenced for
1031	1017		976travel expenses associated with an examination incurred by a defendant.
1032	1018		977 (c) The department shall charge the entity commencing the prosecution for an
1033	1019		978examination of a defendant charged with a violation of a municipal or county ordinance.
1034	1020		979 Section 23. Section 77-16a-302 is amended to read:
1035	1021		980 77-16a-302. Persons found not guilty by reason of insanity -- Disposition.
1036	1022		981 (1) Upon a verdict of not guilty by reason of insanity, the court shall conduct a hearing
1037	1023		982within 10 days to determine whether the defendant currently has a mental [illness] condition.
1038	1024		983The defense counsel and prosecutors may request further evaluations and present testimony
1039	1025		984from those examiners.
1040	1026		985 (2) After the hearing and upon consideration of the record, the court shall order the
1041		-	986defendant committed to the department if it finds by clear and convincing evidence that:
	1027	+	986defendant committed to the department if it finds by clear and convincing evidence that: 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	1028	+	- 33 -
1042	1029		987 (a) the defendant has a mental [illness] condition; and
1043	1030		988 (b) because of that mental [illness] condition the defendant presents a substantial
1044	1031		989danger to self or others.
1045	1032		990 (3) The period of commitment described in Subsection (2) may not exceed the period
1046	1033		991for which the defendant could be incarcerated had the defendant been convicted and received
1047	1034		992the maximum sentence for the crime of which the defendant was accused. At the time that
1048	1035		993period expires, involuntary civil commitment proceedings may be instituted in accordance with
1049	1036		994Title 62A, Chapter 15, Substance Abuse and Mental Health Act.
1050	1037		995 Section 24. Section 77-16a-304 is amended to read:
1051	1038		996 77-16a-304. Review after commitment.
1052	1039		997 (1) (a) The executive director, or the executive director's designee, shall establish a
1053	1040		998review team of at least three qualified staff members to review the defendant's mental condition
1054	1041		999at least every six months.
1055		-	1000 (b) The team described in Subsection (1)(a) shall include: H.B. 385
1056		-	Enrolled Copy
1057		-	- 38 -
	1042	+	1000 (b) The team described in Subsection (1)(a) shall include:
1058	1043		1001 (i) at least one psychiatrist; and
1059	1044		1002 (ii) if the defendant has an intellectual disability, at least one staff member who is a
1060	1045		1003designated intellectual disability professional.
1061	1046		1004 (2) If the review team described in Subsection (1) finds that the defendant has
1062	1047		1005recovered from the defendant's mental [illness] condition, or, that the defendant still has a
1063	1048		1006mental [illness] condition but does not present a substantial danger to self or others, the
1064	1049		1007executive director, or the executive director's designee, shall:
1065	1050		1008 (a) notify the court that committed the defendant that the defendant is a candidate for
1066	1051		1009discharge; and
1067	1052		1010 (b) provide the court with a report stating the facts that form the basis for the
1068	1053		1011recommendation.
1069	1054		1012 (3) (a) The court shall conduct a hearing within 10 business days after receipt of the
1070	1055		1013executive director's, or the executive director's designee's, notification.
1071	1056		1014 (b) The court clerk shall provide notice of the date and time of the hearing to:
1072	1057		1015 (i) the prosecuting attorney;
1073	1058		1016 (ii) the defendant's attorney; and
1074		-	1017 (iii) any victim of the crime for which the defendant was found not guilty by reason of
	1059	+	1017 (iii) any victim of the crime for which the defendant was found not guilty by reason of 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	1060	+	- 34 -
1075	1061		1018insanity.
1076	1062		1019 (4) (a) The court shall order that the defendant be discharged from commitment if the
1077	1063		1020court finds that the defendant:
1078	1064		1021 (i) no longer has a mental [illness] condition; or
1079	1065		1022 (ii) has a mental [illness] condition, but no longer presents a substantial danger to self
1080	1066		1023or others.
1081	1067		1024 (b) The court shall order the person conditionally released in accordance with Section
1082	1068		102577-16a-305 if the court finds that the defendant:
1083	1069		1026 (i) has a mental [illness] condition;
1084		-	1027 (ii) is a substantial danger to self or others; and Enrolled Copy H.B. 385
1085		-	- 39 -
	1070	+	1027 (ii) is a substantial danger to self or others; and
1086	1071		1028 (iii) can be controlled adequately if conditionally released with treatment as a condition
1087	1072		1029of release.
1088	1073		1030 (c) The court shall order that the commitment be continued if the court finds that the
1089	1074		1031defendant:
1090	1075		1032 (i) has not recovered from the defendant's mental [illness] condition;
1091	1076		1033 (ii) is a substantial danger to self or others; and
1092	1077		1034 (iii) cannot adequately be controlled if conditionally released on supervision.
1093	1078		1035 (d) (i) Except as provided in Subsection (4)(d)(ii), the court may not discharge a
1094	1079		1036defendant whose mental [illness] condition is in remission as a result of medication or
1095	1080		1037hospitalization if it can be determined within reasonable medical probability that without
1096	1081		1038continued medication or hospitalization the defendant's mental [illness] condition will reoccur,
1097	1082		1039making the defendant a substantial danger to self or others.
1098	1083		1040 (ii) Notwithstanding Subsection (4)(d)(i), the defendant described in Subsection
1099	1084		1041(4)(d)(i) may be a candidate for conditional release, in accordance with Section 77-16a-305.
1100	1085		1042 Section 25. Section 77-16a-305 is amended to read:
1101	1086		1043 77-16a-305. Conditional release.
1102	1087		1044 (1) If the review team finds that a defendant is not eligible for discharge, in accordance
1103	1088		1045with Section 77-16a-304, but that [his] the defendant's mental [illness] condition and
1104	1089		1046dangerousness can be controlled with proper care, medication, supervision, and treatment if
1105	1090		1047[he] the defendant is conditionally released, the review team shall prepare a report and notify
1106		-	1048the executive director, or [his] the executive director's designee, that the defendant is a
	1091	+	1048the executive director, or [his] the executive director's designee, that the defendant is a 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	1092	+	- 35 -
1107	1093		1049candidate for conditional release.
1108	1094		1050 (2) The executive director, or [his] the executive director's designee, shall prepare a
1109	1095		1051conditional release plan, listing the type of care and treatment that the individual needs and
1110	1096		1052recommending a treatment provider.
1111	1097		1053 (3) The executive director, or [his] the executive director's designee, shall provide the
1112		-	1054court, the defendant's attorney, and the prosecuting attorney with a copy of the report issued by H.B. 385
1113		-	Enrolled Copy
1114		-	- 40 -
	1098	+	1054court, the defendant's attorney, and the prosecuting attorney with a copy of the report issued by
1115	1099		1055the review team under Subsection (1), and the conditional release plan. The court shall
1116	1100		1056conduct a hearing on the issue of conditional release within 30 days after receipt of those
1117	1101		1057documents.
1118	1102		1058 (4) The court may order that a defendant be conditionally released if it finds that, even
1119	1103		1059though the defendant presents a substantial danger to [himself] self or others, [he] the
1120	1104		1060defendant can be adequately controlled with supervision and treatment that is available and
1121	1105		1061provided for in the conditional release plan.
1122	1106		1062 (5) The department may provide treatment or contract with a local mental health
1123	1107		1063authority or other public or private provider to provide treatment for a defendant who is
1124	1108		1064conditionally released under this section.
1125	1109		1065 Section 26. Section 77-16a-306 is amended to read:
1126	1110		1066 77-16a-306. Continuing review -- Discharge.
1127	1111		1067 (1) Each entity that provides treatment for a defendant committed to the department as
1128	1112		1068not guilty by reason of insanity under this part shall review the status of each defendant at least
1129	1113		1069once every six months. If the treatment provider finds that a defendant has recovered from the
1130	1114		1070defendant's mental [illness] condition, or, if the defendant has a mental [illness] condition, no
1131	1115		1071longer presents a substantial danger to self or others, [it] the treatment provider shall notify the
1132	1116		1072executive director of [its] the treatment provider's findings.
1133	1117		1073 (2) Upon receipt of notification under Subsection (1), the executive director shall
1134	1118		1074designate a review team, in accordance with Section 77-16a-304, to evaluate the defendant. If
1135	1119		1075that review team concurs with the treatment provider's assessment, the executive director shall
1136	1120		1076notify the court, the defendant's attorney, and the prosecuting attorney that the defendant is a
1137	1121		1077candidate for discharge. The court shall conduct a hearing, in accordance with Section
1138	1122		107877-16a-302, within 10 business days after receipt of that notice.
1139		-	1079 (3) The court may not discharge an individual whose mental [illness] condition is in
	1123	+	1079 (3) The court may not discharge an individual whose mental [illness] condition is in 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	1124	+	- 36 -
1140	1125		1080remission as a result of medication or hospitalization if it can be determined within reasonable
1141		-	1081medical probability that without continued medication or hospitalization the defendant's mental Enrolled Copy H.B. 385
1142		-	- 41 -
	1126	+	1081medical probability that without continued medication or hospitalization the defendant's mental
1143	1127		1082[illness] condition will reoccur, making the defendant a substantial danger to self or others.
1144	1128		1083 Section 27. Section 77-27-2 is amended to read:
1145	1129		1084 77-27-2. Board of Pardons and Parole -- Creation -- Compensation -- Functions.
1146	1130		1085 (1) (a) There is created the Board of Pardons and Parole.
1147	1131		1086 (b) The board shall consist of five full-time members and not more than five pro
1148	1132		1087tempore members to be appointed by the governor with the advice and consent of the Senate in
1149	1133		1088accordance with Title 63G, Chapter 24, Part 2, Vacancies, and as provided in this section.
1150	1134		1089 (c) The members of the board shall be resident citizens of the state.
1151	1135		1090 (d) The governor shall establish salaries for the members of the board within the salary
1152	1136		1091range fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
1153	1137		1092 (2) (a) (i) (A) The full-time board members shall serve terms of five years.
1154	1138		1093 (B) The terms of the full-time members shall be staggered so one board member is
1155	1139		1094appointed for a term of five years on March 1 of each year.
1156	1140		1095 (ii) (A) The pro tempore members shall serve terms of five years, beginning on March
1157	1141		10961 of the year of appointment, with no more than one pro tempore member term beginning or
1158	1142		1097expiring in the same calendar year.
1159	1143		1098 (B) If a pro tempore member vacancy occurs, the board may submit the names of not
1160	1144		1099fewer than three or more than five persons to the governor for appointment to fill the vacancy.
1161	1145		1100 (b) All vacancies occurring on the board for any cause shall be filled by the governor
1162	1146		1101with the advice and consent of the Senate in accordance with this section for the unexpired
1163	1147		1102term of the vacating member.
1164	1148		1103 (c) The governor may at any time remove any member of the board for inefficiency,
1165	1149		1104neglect of duty, malfeasance or malfeasance in office, or for cause upon a hearing.
1166	1150		1105 (d) (i) A member of the board may not hold any other office in the government of the
1167	1151		1106United States, this state or any other state, or of any county government or municipal
1168	1152		1107corporation within a state.
1169		-	1108 (ii) A member may not engage in any occupation or business inconsistent with the H.B. 385
1170		-	Enrolled Copy
1171		-	- 42 -
	1153	+	1108 (ii) A member may not engage in any occupation or business inconsistent with the
1172	1154		1109member's duties.
1173		-	1110 (e) (i) A majority of the board constitutes a quorum for the transaction of business,
	1155	+	1110 (e) (i) A majority of the board constitutes a quorum for the transaction of business, 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	1156	+	- 37 -
1174	1157		1111including the holding of hearings at any time or any location within or without the state, or for
1175	1158		1112the purpose of exercising any duty or authority of the board.
1176	1159		1113 (ii) An action is deemed the action of the board if the action is taken by a majority of
1177	1160		1114the board regarding whether:
1178	1161		1115 (A) parole, pardon, commutation, or termination of a sentence is granted in an
1179	1162		1116offender's case;
1180	1163		1117 (B) remission of a criminal accounts receivable, or a fines or forfeiture, is granted in an
1181	1164		1118offender's case; or
1182	1165		1119 (C) an offender's payment schedule for a criminal accounts receivable is modified.
1183	1166		1120 (iii) A majority vote of the five full-time members of the board is required for adoption
1184	1167		1121of rules or policies of general applicability as provided by statute.
1185	1168		1122 (iv) Notwithstanding Subsection (2)(e)(iii), a vacancy on the board does not impair the
1186	1169		1123right of the remaining board members to exercise any duty or authority of the board as long as a
1187	1170		1124majority of the board remains.
1188	1171		1125 (v) A board member shall comply with the conflict of interest provisions described in
1189	1172		1126Title 63G, Chapter 24, Part 3, Conflicts of Interest.
1190	1173		1127 (f) (i) Any investigation, inquiry, or hearing that the board has authority to undertake or
1191	1174		1128hold may be conducted by any board member or an examiner appointed by the board.
1192	1175		1129 (ii) When an action under Subsection (2)(f)(i) is approved and confirmed by the board
1193	1176		1130and filed in the board's office, the action is considered to be the action of the board and has the
1194	1177		1131same effect as if originally made by the board.
1195	1178		1132 (g) (i) When a full-time board member is absent or in other extraordinary
1196	1179		1133circumstances, the chair may, as dictated by public interest and efficient administration of the
1197	1180		1134board, assign a pro tempore member to act in the place of a full-time member.
1198		-	1135 (ii) Pro tempore members shall receive a per diem rate of compensation as established Enrolled Copy H.B. 385
1199		-	- 43 -
	1181	+	1135 (ii) Pro tempore members shall receive a per diem rate of compensation as established
1200	1182		1136by the Division of Finance and all actual and necessary expenses incurred in attending to
1201	1183		1137official business.
1202	1184		1138 (h) The chair may request staff and administrative support as necessary from the
1203	1185		1139department.
1204	1186		1140 (3) (a) Except as provided in Subsection (3)(b), the commission shall:
1205		-	1141 (i) recommend five applicants to the governor for a full-time member appointment to
	1187	+	1141 (i) recommend five applicants to the governor for a full-time member appointment to 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	1188	+	- 38 -
1206	1189		1142the board; and
1207	1190		1143 (ii) consider applicants' knowledge of the criminal justice system, state and federal
1208	1191		1144criminal law, judicial procedure, corrections policies and procedures, and behavioral sciences.
1209	1192		1145 (b) The procedures and requirements of Subsection (3)(a) do not apply if the governor
1210	1193		1146appoints a sitting board member to a new term of office.
1211	1194		1147 (4) (a) (i) The board shall appoint an individual to serve as the board's mental health
1212	1195		1148adviser and may appoint other staff necessary to aid the board in fulfilling the board's
1213	1196		1149responsibilities under [Title 77, Chapter 16a, Commitment and Treatment of Persons with a
1214	1197		1150Mental Illness] Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental
1215	1198		1151Condition.
1216	1199		1152 (ii) The adviser shall prepare reports and recommendations to the board on all persons
1217	1200		1153adjudicated as guilty with a mental [illness] condition, in accordance with [Title 77, Chapter
1218	1201		115416a, Commitment and Treatment of Persons with a Mental Illness] Title 77, Chapter 16a,
1219	1202		1155Commitment and Treatment of Individuals with a Mental Condition.
1220	1203		1156 (b) The mental health adviser shall possess the qualifications necessary to carry out the
1221	1204		1157duties imposed by the board and may not be employed by the department or the Utah State
1222	1205		1158Hospital.
1223	1206		1159 (i) The board may review outside employment by the mental health advisor.
1224	1207		1160 (ii) The board shall develop rules governing employment with entities other than the
1225	1208		1161board by the mental health advisor for the purpose of prohibiting a conflict of interest.
1226		-	1162 (c) The mental health adviser shall: H.B. 385
1227		-	Enrolled Copy
1228		-	- 44 -
	1209	+	1162 (c) The mental health adviser shall:
1229	1210		1163 (i) act as liaison for the board with the Department of Health and Human Services and
1230	1211		1164local mental health authorities;
1231	1212		1165 (ii) educate the members of the board regarding the needs and special circumstances of
1232	1213		1166persons with a mental [illness] condition in the criminal justice system;
1233	1214		1167 (iii) in cooperation with the department, monitor the status of persons in the prison
1234	1215		1168who have been found guilty with a mental [illness] condition;
1235	1216		1169 (iv) monitor the progress of other persons under the board's jurisdiction who have a
1236	1217		1170mental [illness] condition;
1237	1218		1171 (v) conduct hearings as necessary in the preparation of reports and recommendations;
1238		-	1172and
	1219	+	1172and 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	1220	+	- 39 -
1239	1221		1173 (vi) perform other duties as assigned by the board.
1240	1222		1174 Section 28. Section 77-27-5.3 is amended to read:
1241	1223		1175 77-27-5.3. Meritless and bad faith litigation.
1242	1224		1176 (1) For purposes of this section:
1243	1225		1177 (a) "Convicted" means a conviction by entry of a plea of guilty or nolo contendere,
1244	1226		1178guilty with a mental [illness] condition, no contest, and conviction of any crime or offense.
1245	1227		1179 (b) "Prisoner" means a person who has been convicted of a crime and is incarcerated
1246	1228		1180for that crime or is being held in custody for trial or sentencing.
1247	1229		1181 (2) In any case filed in state or federal court in which a prisoner submits a claim that
1248	1230		1182the court finds to be without merit and brought or asserted in bad faith, the Board of Pardons
1249	1231		1183and Parole and any county jail administrator may consider that finding in any early release
1250	1232		1184decisions concerning the prisoner.
1251	1233		1185 Section 29. Section 77-27-10.5 is amended to read:
1252	1234		1186 77-27-10.5. Special condition of parole -- Penalty.
1253	1235		1187 (1) In accordance with Section 77-27-5, the Board of Pardons and Parole may release
1254	1236		1188the defendant on parole and as a condition of parole, the board may order the defendant to be
1255		-	1189prohibited from directly or indirectly engaging in any profit or benefit generating activity Enrolled Copy H.B. 385
1256		-	- 45 -
	1237	+	1189prohibited from directly or indirectly engaging in any profit or benefit generating activity
1257	1238		1190relating to the publication of facts or circumstances pertaining to the defendant's involvement
1258	1239		1191in the criminal act for which the defendant is convicted.
1259	1240		1192 (2) The order may prohibit the defendant from contracting with any person, firm,
1260	1241		1193corporation, partnership, association, or other legal entity with respect to the commission and
1261	1242		1194reenactment of the defendant's criminal conduct, by way of a movie, book, magazine article,
1262	1243		1195tape recording, phonograph record, radio, or television presentations, live entertainment of any
1263	1244		1196kind, or from the expression of the defendant's thoughts, feelings, opinions, or emotions
1264	1245		1197regarding the criminal conduct.
1265	1246		1198 (3) The board may order that the prohibition includes any event undertaken and
1266	1247		1199experienced by the defendant while avoiding apprehension from the authorities or while facing
1267	1248		1200criminal charges.
1268	1249		1201 (4) The board may order that any action taken by the defendant by way of execution of
1269	1250		1202power of attorney, creation of corporate entities, or other action to avoid compliance with the
1270		-	1203board's order shall be grounds for revocation of parole as provided in Section 77-27-11.
	1251	+	1203board's order shall be grounds for revocation of parole as provided in Section 77-27-11. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	1252	+	- 40 -
1271	1253		1204 (5) Adult Probation and Parole shall notify the board of any alleged violation of the
1272	1254		1205board's order under this section.
1273	1255		1206 (6) The violation of the board's order shall be considered a violation of parole.
1274	1256		1207 (7) For purposes of this section:
1275	1257		1208 (a) "convicted" means a conviction by entry of a plea of guilty or nolo contendere,
1276	1258		1209guilty with a mental [illness] condition, no contest, and conviction of any crime or offense; and
1277	1259		1210 (b) "defendant" means the convicted defendant, the defendant's assignees, and
1278	1260		1211representatives acting on the defendant's authority.
1279	1261		1212 Section 30. Section 77-36-1.1 is amended to read:
1280	1262		1213 77-36-1.1. Enhancement of offense and penalty for subsequent domestic violence
1281	1263		1214offenses.
1282	1264		1215 (1) As used in this section:
1283		-	1216 (a) (i) "Convicted" means a conviction by plea or verdict of a crime or offense. H.B. 385
1284		-	Enrolled Copy
1285		-	- 46 -
	1265	+	1216 (a) (i) "Convicted" means a conviction by plea or verdict of a crime or offense.
1286	1266		1217 (ii) "Convicted" includes:
1287	1267		1218 (A) a plea of guilty or guilty [and mentally ill] with a mental condition;
1288	1268		1219 (B) a plea of no contest; and
1289	1269		1220 (C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
1290	1270		1221in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
1291	1271		1222accordance with the plea in abeyance agreement.
1292	1272		1223 (iii) "Convicted" does not include an adjudication in juvenile court.
1293	1273		1224 (b) "Criminal mischief offense" means commission or attempt to commit an offense
1294	1274		1225under Section 76-6-106 by one cohabitant against another.
1295	1275		1226 (c) "Offense against the person" means commission or attempt to commit an offense
1296	1276		1227under Title 76, Chapter 5, Part 1, Assault and Related Offenses, Part 2, Criminal Homicide,
1297	1277		1228Part 3, Kidnapping, Trafficking, and Smuggling, Part 4, Sexual Offenses, or Part 7, Genital
1298	1278		1229Mutilation, by one cohabitant against another.
1299	1279		1230 (d) "Qualifying domestic violence offense" means:
1300	1280		1231 (i) a domestic violence offense in Utah; or
1301	1281		1232 (ii) an offense in any other state, or in any district, possession, or territory of the United
1302	1282		1233States, that would be a domestic violence offense under Utah law.
1303		-	1234 (2) An individual who is convicted of a domestic violence offense is guilty of a class B
	1283	+	1234 (2) An individual who is convicted of a domestic violence offense is guilty of a class B 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	1284	+	- 41 -
1304	1285		1235misdemeanor if:
1305	1286		1236 (a) the domestic violence offense described in this Subsection (2) is designated by law
1306	1287		1237as a class C misdemeanor; and
1307	1288		1238 (b) the individual commits or is convicted of the domestic violence offense described
1308	1289		1239in this Subsection (2):
1309	1290		1240 (i) within 10 years after the day on which the individual is convicted of a qualifying
1310	1291		1241domestic violence offense that is not a criminal mischief offense; or
1311	1292		1242 (ii) within five years after the day on which the individual is convicted of a criminal
1312		-	1243mischief offense. Enrolled Copy H.B. 385
1313		-	- 47 -
	1293	+	1243mischief offense.
1314	1294		1244 (3) An individual who is convicted of a domestic violence offense is guilty of a class A
1315	1295		1245misdemeanor if:
1316	1296		1246 (a) the domestic violence offense described in this Subsection (3) is designated by law
1317	1297		1247as a class B misdemeanor; and
1318	1298		1248 (b) the individual commits or is convicted of the domestic violence offense described
1319	1299		1249in this Subsection (3):
1320	1300		1250 (i) within 10 years after the day on which the individual is convicted of a qualifying
1321	1301		1251domestic violence offense that is not a criminal mischief offense; or
1322	1302		1252 (ii) within five years after the day on which the individual is convicted of a criminal
1323	1303		1253mischief offense.
1324	1304		1254 (4) An individual who is convicted of a domestic violence offense is guilty of a third
1325	1305		1255degree felony if:
1326	1306		1256 (a) the domestic violence offense described in this Subsection (4) is designated by law
1327	1307		1257as a class B misdemeanor offense against the person and the individual:
1328	1308		1258 (i) (A) commits or is convicted of the domestic violence offense described in this
1329	1309		1259Subsection (4) within 10 years after the day on which the individual is convicted of a
1330	1310		1260qualifying domestic violence offense that is not a criminal mischief offense; and
1331	1311		1261 (B) is convicted of another qualifying domestic violence offense that is not a criminal
1332	1312		1262mischief offense after the day on which the individual is convicted of the qualifying domestic
1333	1313		1263violence offense described in Subsection (4)(a)(i)(A) and before the day on which the
1334	1314		1264individual is convicted of the domestic violence offense described in this Subsection (4);
1335		-	1265 (ii) (A) commits or is convicted of the domestic violence offense described in this
	1315	+	1265 (ii) (A) commits or is convicted of the domestic violence offense described in this 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	1316	+	- 42 -
1336	1317		1266Subsection (4) within five years after the day on which the individual is convicted of a criminal
1337	1318		1267mischief offense; and
1338	1319		1268 (B) is convicted of another criminal mischief offense after the day on which the
1339	1320		1269individual is convicted of the criminal mischief offense described in Subsection (4)(a)(ii)(A)
1340		-	1270and before the day on which the individual is convicted of the domestic violence offense H.B. 385
1341		-	Enrolled Copy
1342		-	- 48 -
	1321	+	1270and before the day on which the individual is convicted of the domestic violence offense
1343	1322		1271described in this Subsection (4); or
1344	1323		1272 (iii) commits or is convicted of the domestic violence offense described in this
1345	1324		1273Subsection (4) within 10 years after the day on which the individual is convicted of a
1346	1325		1274qualifying domestic violence offense that is not a criminal mischief offense and within five
1347	1326		1275years after the day on which the individual is convicted of a criminal mischief offense; and
1348	1327		1276 (b) (i) the domestic violence offense described in this Subsection (4) is designated by
1349	1328		1277law as a class A misdemeanor; and
1350	1329		1278 (ii) the individual commits or is convicted of the domestic violence offense described
1351	1330		1279in this Subsection (4):
1352	1331		1280 (A) within 10 years after the day on which the individual is convicted of a qualifying
1353	1332		1281domestic violence offense that is not a criminal mischief offense; or
1354	1333		1282 (B) within five years after the day on which the individual is convicted of a criminal
1355	1334		1283mischief offense.
1356	1335		1284 Section 31. Section 77-38-302 is amended to read:
1357	1336		1285 77-38-302. Definitions.
1358	1337		1286 As used in this part:
1359	1338		1287 (1) "Convicted person" means a person who has been convicted of a crime.
1360	1339		1288 (2) "Conviction" means an adjudication by a federal or state court resulting from a trial
1361	1340		1289or plea, including a plea of no contest, nolo contendere, a finding of not guilty due to insanity,
1362	1341		1290or not guilty but having a mental [illness] condition regardless of whether the sentence was
1363	1342		1291imposed or suspended.
1364	1343		1292 (3) "Fund" means the Crime Victim Reparations Fund created in Section 63M-7-526.
1365	1344		1293 (4) "Memorabilia" means any tangible property of a convicted person or a
1366	1345		1294representative or assignee of a convicted person, the value of which is enhanced by the
1367	1346		1295notoriety gained from the criminal activity for which the person was convicted.
1368		-	1296 (5) "Notoriety of crimes contract" means a contract or other agreement with a
1369		-	~~1297convicted person,~~ ~~or a representative or assignee of a convicted person, with respect to: Enrolled Copy H.B. 385~~
1370		-	~~- 49 -~~
	1347	+	1296 (5) "Notoriety of crimes contract" means a contract or other agreement with a 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	1348	+	- 43 -
	1349	+	1297convicted person, or a representative or assignee of a convicted person, with respect to:
1371	1350		1298 (a) the reenactment of a crime in any manner including a movie, book, magazine
1372	1351		1299article, Internet website, recording, phonograph record, radio or television presentation, or live
1373	1352		1300entertainment of any kind;
1374	1353		1301 (b) the expression of the convicted person's thoughts, feelings, opinions, or emotions
1375	1354		1302regarding a crime involving or causing personal injury, death, or property loss as a direct result
1376	1355		1303of the crime; or
1377	1356		1304 (c) the payment or exchange of any money or other consideration or the proceeds or
1378	1357		1305profits that directly or indirectly result from the notoriety of the crime.
1379	1358		1306 (6) "Office" means the Utah Office for Victims of Crime.
1380	1359		1307 (7) "Profit" means any income or benefit:
1381	1360		1308 (a) over and above the fair market value of tangible property that is received upon the
1382	1361		1309sale or transfer of memorabilia; or
1383	1362		1310 (b) any money, negotiable instruments, securities, or other consideration received or
1384	1363		1311contracted for gain which is traceable to a notoriety of crimes contract.
1385	1364		1312 Section 32. Section 77-38b-102 is amended to read:
1386	1365		1313 77-38b-102. Definitions.
1387	1366		1314 As used in this chapter:
1388	1367		1315 (1) "Civil accounts receivable" means the same as that term is defined in Section
1389	1368		131677-32b-102.
1390	1369		1317 (2) "Civil judgment of restitution" means the same as that term is defined in Section
1391	1370		131877-32b-102.
1392	1371		1319 (3) (a) "Conviction" means:
1393	1372		1320 (i) a plea of:
1394	1373		1321 (A) guilty;
1395	1374		1322 (B) guilty with a mental [illness] condition; or
1396	1375		1323 (C) no contest; or
1397		-	1324 (ii) a judgment of: H.B. 385
1398		-	Enrolled Copy
1399		-	- 50 -
	1376	+	1324 (ii) a judgment of:
1400	1377		1325 (A) guilty; or
1401	1378		1326 (B) guilty with a mental [illness] condition.
1402		-	1327 (b) "Conviction" does not include:
	1379	+	1327 (b) "Conviction" does not include: 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	1380	+	- 44 -
1403	1381		1328 (i) a plea in abeyance until a conviction is entered for the plea in abeyance;
1404	1382		1329 (ii) a diversion agreement; or
1405	1383		1330 (iii) an adjudication of a minor for an offense under Section 80-6-701.
1406	1384		1331 (4) "Criminal accounts receivable" means the same as that term is defined in Section
1407	1385		133277-32b-102.
1408	1386		1333 (5) "Criminal conduct" means:
1409	1387		1334 (a) any misdemeanor or felony offense of which the defendant is convicted; or
1410	1388		1335 (b) any other criminal behavior for which the defendant admits responsibility to the
1411	1389		1336sentencing court with or without an admission of committing the criminal behavior.
1412	1390		1337 (6) (a) "Defendant" means an individual who has been convicted of, or entered into a
1413	1391		1338plea disposition for, criminal conduct.
1414	1392		1339 (b) "Defendant" does not include a minor, as defined in Section 80-1-102, who is
1415	1393		1340adjudicated, or enters into a nonjudicial adjustment, for any offense under Title 80, Chapter 6,
1416	1394		1341Juvenile Justice.
1417	1395		1342 (7) "Department" means the Department of Corrections.
1418	1396		1343 (8) "Diversion agreement" means an agreement entered into by the prosecuting
1419	1397		1344attorney and the defendant that suspends criminal proceedings before conviction on the
1420	1398		1345condition that a defendant agree to participate in a rehabilitation program, pay restitution to the
1421	1399		1346victim, or fulfill some other condition.
1422	1400		1347 (9) "Office" means the Office of State Debt Collection created in Section 63A-3-502.
1423	1401		1348 (10) "Party" means the prosecuting attorney, the defendant, or the department involved
1424	1402		1349in a prosecution.
1425	1403		1350 (11) "Payment schedule" means the same as that term is defined in Section
1426		-	135177-32b-102. Enrolled Copy H.B. 385
1427		-	- 51 -
	1404	+	135177-32b-102.
1428	1405		1352 (12) (a) "Pecuniary damages" means all demonstrable economic injury, losses, and
1429	1406		1353expenses regardless of whether the economic injury, losses, and expenses have yet been
1430	1407		1354incurred.
1431	1408		1355 (b) "Pecuniary damages" does not include punitive damages or pain and suffering
1432	1409		1356damages.
1433	1410		1357 (13) "Plea agreement" means an agreement entered between the prosecuting attorney
1434		-	1358and the defendant setting forth the special terms and conditions and criminal charges upon
	1411	+	1358and the defendant setting forth the special terms and conditions and criminal charges upon 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	1412	+	- 45 -
1435	1413		1359which the defendant will enter a plea of guilty or no contest.
1436	1414		1360 (14) "Plea disposition" means an agreement entered into between the prosecuting
1437	1415		1361attorney and the defendant including a diversion agreement, a plea agreement, a plea in
1438	1416		1362abeyance agreement, or any agreement by which the defendant may enter a plea in any other
1439	1417		1363jurisdiction or where charges are dismissed without a plea.
1440	1418		1364 (15) "Plea in abeyance" means an order by a court, upon motion of the prosecuting
1441	1419		1365attorney and the defendant, accepting a plea of guilty or of no contest from the defendant but
1442	1420		1366not, at that time, entering judgment of conviction against the defendant nor imposing sentence
1443	1421		1367upon the defendant on condition that the defendant comply with specific conditions as set forth
1444	1422		1368in a plea in abeyance agreement.
1445	1423		1369 (16) "Plea in abeyance agreement" means an agreement entered into between the
1446	1424		1370prosecuting attorney and the defendant setting forth the specific terms and conditions upon
1447	1425		1371which, following acceptance of the agreement by the court, a plea may be held in abeyance.
1448	1426		1372 (17) "Restitution" means the payment of pecuniary damages to a victim.
1449	1427		1373 (18) (a) "Victim" means any person who has suffered pecuniary damages that are
1450	1428		1374proximately caused by the criminal conduct of the defendant.
1451	1429		1375 (b) "Victim" includes:
1452	1430		1376 (i) the Utah Office for Victims of Crime if the Utah Office for Victims of Crime makes
1453	1431		1377a payment to a victim under Section 63M-7-519;
1454		-	1378 (ii) the estate of a deceased victim; and H.B. 385
1455		-	Enrolled Copy
1456		-	- 52 -
	1432	+	1378 (ii) the estate of a deceased victim; and
1457	1433		1379 (iii) a parent, spouse, or sibling of a victim.
1458	1434		1380 (c) "Victim" does not include a codefendant or accomplice.
1459	1435		1381 Section 33. Section 78A-2-302 is amended to read:
1460	1436		1382 78A-2-302. Indigent litigants -- Affidavit.
1461	1437		1383 (1) As used in Sections 78A-2-302 through 78A-2-309:
1462	1438		1384 (a) "Convicted" means:
1463	1439		1385 (i) a conviction by entry of a plea of guilty or nolo contendere, guilty with a mental
1464	1440		1386[illness] condition, no contest; and
1465	1441		1387 (ii) a conviction of any crime or offense.
1466	1442		1388 (b) "Indigent" means an individual who is financially unable to pay fees and costs or
1467		-	1389give security.
	1443	+	1389give security. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	1444	+	- 46 -
1468	1445		1390 (c) "Prisoner" means an individual who has been convicted of a crime and is
1469	1446		1391incarcerated for that crime or is being held in custody for trial or sentencing.
1470	1447		1392 (2) An individual may institute, prosecute, defend, or appeal any cause in a court in this
1471	1448		1393state without prepayment of fees and costs or security if the individual submits an affidavit
1472	1449		1394demonstrating that the individual is indigent.
1473	1450		1395 (3) A court shall find an individual indigent if the individual's affidavit under
1474	1451		1396Subsection (2) demonstrates:
1475	1452		1397 (a) the individual has an income level at or below 150% of the United States poverty
1476	1453		1398level as defined by the most recent poverty income guidelines published by the United States
1477	1454		1399Department of Health and Human Services;
1478	1455		1400 (b) the individual receives benefits from a means-tested government program,
1479	1456		1401including Temporary Assistance to Needy Families, Supplemental Security Income, the
1480	1457		1402Supplemental Nutrition Assistance Program, or Medicaid;
1481	1458		1403 (c) the individual receives legal services from a nonprofit provider or a pro bono
1482	1459		1404attorney through the Utah State Bar; or
1483		-	1405 (d) the individual has insufficient income or other means to pay the necessary fees and Enrolled Copy H.B. 385
1484		-	- 53 -
	1460	+	1405 (d) the individual has insufficient income or other means to pay the necessary fees and
1485	1461		1406costs or security without depriving the individual, or the individual's family, of food, shelter,
1486	1462		1407clothing, or other necessities.
1487	1463		1408 (4) An affidavit demonstrating that an individual is indigent under Subsection (3)(d)
1488	1464		1409shall contain complete information on the individual's:
1489	1465		1410 (a) identity and residence;
1490	1466		1411 (b) amount of income, including any government financial support, alimony, or child
1491	1467		1412support;
1492	1468		1413 (c) assets owned, including real and personal property;
1493	1469		1414 (d) business interests;
1494	1470		1415 (e) accounts receivable;
1495	1471		1416 (f) securities, checking and savings account balances;
1496	1472		1417 (g) debts; and
1497	1473		1418 (h) monthly expenses.
1498	1474		1419 (5) If the individual under Subsection (3) is a prisoner, the prisoner shall disclose the
1499		-	1420amount of money held in the prisoner's trust account at the time the affidavit under Subsection
	1475	+	1420amount of money held in the prisoner's trust account at the time the affidavit under Subsection 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
	1476	+	- 47 -
1500	1477		1421(2) is executed in accordance with Section 78A-2-305.
1501	1478		1422 (6) An affidavit of indigency under this section shall state the following:
1502	1479		1423 I, (insert name), do solemnly swear or affirm that due to my poverty I am unable to bear
1503	1480		1424the expenses of the action or legal proceedings which I am about to commence or the appeal
1504	1481		1425which I am about to take, and that I believe I am entitled to the relief sought by the action, legal
1505	1482		1426proceedings, or appeal.
1506	1483		1427 Section 34. Section 78B-7-901 is amended to read:
1507	1484		1428 78B-7-901. Definitions.
1508	1485		1429 As used in this part:
1509	1486		1430 (1) "Conviction" means:
1510	1487		1431 (a) a verdict or conviction;
1511		-	1432 (b) a plea of guilty or guilty [and mentally ill] with a mental condition; H.B. 385
1512		-	Enrolled Copy
1513		-	- 54 -
	1488	+	1432 (b) a plea of guilty or guilty [and mentally ill] with a mental condition;
1514	1489		1433 (c) a plea of no contest; or
1515	1490		1434 (d) the acceptance by the court of a plea in abeyance.
1516	1491		1435 (2) "Immediate family" means the same as that term is defined in Section 76-5-106.5.
1517	1492		1436 Section 35. Section 80-2-1004 is amended to read:
1518	1493		1437 80-2-1004. Request for division removal of name from Licensing Information
1519	1494		1438System -- Petition for evidentiary hearing or substantiation.
1520	1495		1439 (1) Except as provided in Subsection (2), an individual whose name is listed on the
1521	1496		1440Licensing Information System as of May 6, 2002, may at any time:
1522	1497		1441 (a) request review by the division of the individual's case and removal of the
1523	1498		1442individual's name from the Licensing Information System under Subsection (3); or
1524	1499		1443 (b) file a petition for substantiation and a request for a finding of unsubstantiated or
1525	1500		1444without merit in accordance with Section 80-3-504.
1526	1501		1445 (2) Subsection (1) does not apply to an individual who has been the subject of any of
1527	1502		1446the following court determinations with respect to the alleged incident of abuse or neglect:
1528	1503		1447 (a) conviction;
1529	1504		1448 (b) adjudication under Section 80-3-402 or 80-6-701;
1530	1505		1449 (c) plea of guilty;
1531	1506		1450 (d) plea of guilty with a mental [illness] condition; or
1532		-	1451 (e) no contest.
	1507	+	1451 (e) no contest. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
	1508	+	- 48 -
1533	1509		1452 (3) If an alleged perpetrator listed on the Licensing Information System before May 6,
1534	1510		14532002, requests removal of the alleged perpetrator's name from the Licensing Information
1535	1511		1454System, the division shall, within 30 days after the day on which the request is made:
1536	1512		1455 (a) (i) review the case to determine whether the incident of alleged abuse or neglect
1537	1513		1456qualifies as:
1538	1514		1457 (A) a severe type of child abuse or neglect;
1539	1515		1458 (B) chronic abuse; or
1540		-	1459 (C) chronic neglect; and Enrolled Copy H.B. 385
1541		-	- 55 -
	1516	+	1459 (C) chronic neglect; and
1542	1517		1460 (ii) if the alleged abuse or neglect does not qualify as a type of abuse or neglect
1543	1518		1461described in Subsections (3)(a)(i)(A) through (C), remove the alleged perpetrator's name from
1544	1519		1462the Licensing Information System; or
1545	1520		1463 (b) determine whether to file a petition for substantiation in accordance with Section
1546	1521		146480-3-504.
1547	1522		1465 Section 36. Revisor instructions.
1548	1523		1466 The Legislature intends that the Office of Legislative Research and General Counsel, in
1549	1524		1467preparing the Utah Code database for publication, replace the terms "guilty with a mental
1550	1525		1468illness" and "guilty and mentally ill" with "guilty with a mental condition" in any new language
1551	1526		1469added to the Utah Code by legislation passed during the 2023 General Session.