(1)  At any time after the commencement of prosecution and before conviction, the prosecuting attorney may, by written agreement with the defendant, filed with the court, and upon approval of the court, divert a defendant to a non-criminal diversion program.

Terms Used In Utah Code 77-2-5

  • Commencement of prosecution: means the filing of an information or an indictment. See Utah Code 77-2-2
  • Conviction: A judgement of guilt against a criminal defendant.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Diversion: means suspending criminal proceedings before conviction on the condition that a defendant agree to:
(a) participate in a rehabilitation program;
(b) pay restitution to a victim; or
(c) fulfill some other condition. See Utah Code 77-2-2
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
  • Restitution: means the same as that term is defined in Section 77-38b-102. See Utah Code 77-2-2
  • Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
    • (2)  A defendant shall be represented by counsel during negotiations for diversion and at the time of execution of any diversion agreement unless the defendant has knowingly and intelligently waived the defendant’s right to counsel.

    (3)  The defendant has the right to be represented by counsel at any court hearing relating to a diversion program.

    (4) 

    (a)  A diversion agreement, entered into between the prosecuting attorney and the defendant and approved by a magistrate, shall contain a full, detailed statement of the requirements agreed to by the defendant and the reasons for diversion.

    (b)  The diversion agreement described in Subsection (4)(a) shall include an agreement, by the parties, for a specific amount of restitution that the defendant will pay, unless the prosecuting attorney certifies that:

    (i)  the prosecuting attorney has consulted with all victims, including the Utah Office for Victims of Crime; and

    (ii)  the defendant does not owe any restitution.

    (5) 

    (a)  If the court approves a diversion agreement that includes an agreement by the parties for the amount of restitution that the defendant will pay, the court shall order the defendant to pay restitution in accordance with the terms of the diversion agreement.

    (b)  The court shall collect, receive, process, and distribute payments for restitution to the victim, unless otherwise provided by law or by the diversion agreement.

    (6)  A decision by a prosecuting attorney not to divert a defendant is not subject to judicial review.

    (7)  A diversion agreement entered into between the prosecution and the defense and approved by a magistrate may contain an order that the defendant pay a nonrefundable diversion fee that:

    (a)  shall be allocated in the same manner as if paid as a fine for a criminal conviction under Section 78A-5-110 or Section 78A-7-120; and

    (b)  may not exceed the suggested fine listed in the Uniform Fine Schedule adopted by the Judicial Council.

    (8)  A diversion agreement may not be approved unless the defendant knowingly and intelligently waives the defendant’s constitutional right to a speedy trial before a magistrate and in the diversion agreement.

    (9) 

    (a)  The court shall, on the defendant’s request, consider the defendant’s ability to pay a diversion fee before ordering the defendant to pay a diversion fee.

    (b)  The court may:

    (i)  consider any relevant evidence in determining the defendant’s ability to pay a diversion fee; and

    (ii)  lower or waive the diversion fee based on that evidence.

    (10)  A diversion program longer than two years is not permitted.

    Amended by Chapter 43, 2021 General Session
    Amended by Chapter 260, 2021 General Session

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