78B-9-405. Judgment and assistance payment.
| (1) |
As used in this section:
Terms Used In Utah Code 78B-9-405- Appropriation: The provision of funds, through an annual appropriations act or a permanent law, for federal agencies to make payments out of the Treasury for specified purposes. The formal federal spending process consists of two sequential steps: authorization
- Conviction: A judgement of guilt against a criminal defendant.
- factually innocent: means a person did not:Utah Code 78B-9-401.5
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Month: means a calendar month, unless otherwise expressed. See Utah Code 68-3-12.5
- Period of incarceration: means any sentence of imprisonment, including jail, which was served after judgement of conviction. See Utah Code 78B-9-401.5
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
- United States: includes each state, district, and territory of the United States of America. See Utah Code 68-3-12.5
| (a) |
“Felony” means a criminal offense classified as a felony under Title 76, Chapter 3, Punishments, or conduct that would constitute a felony if committed in Utah. |
| (b) |
“Petitioner” means a United States citizen or an individual who was otherwise lawfully present in this country at the time of the incident that gave rise to the underlying conviction. |
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| (2) |
| (a) |
If a court finds a petitioner factually innocent under 3, or under this part, and if the petitioner has served a period of incarceration, the court shall order that the petitioner receive for each year or portion of a year the petitioner was incarcerated, up to a maximum of 15 years, the monetary equivalent of the average annual nonagricultural payroll wage in Utah, as determined by the data most recently published by the Department of Workforce Services at the time of the petitioner’s release from prison. |
| (b) |
The court’s determination of the monetary equivalent of the average annual nonagricultural payroll wage shall be included in the order declaring that the petitioner is factually innocent. |
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| (3) |
If a court orders that a petitioner is to receive payment under Subsection (2):
| (a) |
the Utah Office for Victims of Crime shall pay from the Crime Victim Reparations Fund to the petitioner within 45 days of the court order under Subsection (2) an initial sum equal to either 20% of the total financial assistance payment as determined under Subsection (2) or an amount equal to two years of incarceration, whichever is greater, but not to exceed the total amount owed; |
| (b) |
the Legislature shall appropriate as nonlapsing funds from the General Fund, and no later than the next general session following the issuance of the court order under Subsection (2):
| (i) |
to the Crime Victim Reparations Fund, the amount that was paid out of the fund under Subsection (3)(a); and |
| (ii) |
to the State Commission on Criminal and Juvenile Justice, as a separate line item, the amount ordered by the court for payments under Subsection (2), minus the amount reimbursed to the Crime Victim Reparations Fund under Subsection (3)(b)(i); and |
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| (c) |
the State Commission on Criminal and Juvenile Justice shall pay the amount ordered by the court under Subsection (2), minus the amount paid by the Utah Office for Victims of Crime under Subsection (3)(a), to the petitioner:
| (i) |
quarterly on or before the last day of the month next succeeding each calendar quarterly period; or |
| (ii) |
in one lump sum payment no later than the next succeeding July 31 after the day on which the court ordered the payment. |
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| (4) |
| (a) |
For a payment under Subsection (3)(c):
| (i) |
the petitioner shall choose, within 90 days after the day on which the payment under Subsection (3)(a) is made, whether the payment is disbursed under Subsection (3)(c)(i) or (ii); and |
| (ii) |
the State Commission on Criminal and Juvenile Justice shall disburse the payment in accordance with the petitioner’s choice under Subsection (4)(a)(i). |
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| (b) |
If the petitioner fails to make a choice under Subsection (4)(a)(i) within 90 days after the day on which the payment under Subsection (3)(a) is made, the State Commission on Criminal and Juvenile Justice shall pay the amount under Subsection (3)(c) in accordance with Subsection (3)(c)(i). |
| (c) |
| (i) |
If a court ordered a petitioner to receive a payment under this section on or before May 5, 2021, the petitioner may request that the State Commission on Criminal and Juvenile Justice disburse the remaining balance of the payment owed to the petitioner under Subsection (3)(c) in one lump sum payment. |
| (ii) |
If a petitioner submits a request under Subsection (4)(c)(i), the State Commission on Criminal and Juvenile Justice shall disburse the remaining balance of the payment owed to the petitioner in one lump sum payment. |
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| (5) |
Payments under Subsection (3)(c)(i) shall:
| (a) |
commence no later than one year after the effective date of the appropriation for the payments; |
| (b) |
be made to the petitioner for the balance of the amount ordered by the court after the initial payment under Subsection (3)(a); and |
| (c) |
be allocated so that the entire amount due to the petitioner under this section has been paid no later than 10 years after the effective date of the appropriation made under Subsection (3)(b). |
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| (6) |
| (a) |
Payments under this section shall be reduced to the extent that the period of incarceration for which the petitioner seeks payment was attributable to a separate and lawful conviction. |
| (b) |
Payments under this section shall:
| (i) |
be tolled upon the commencement of any period of incarceration due to the petitioner’s subsequent conviction of a felony; and |
| (ii) |
resume upon the conclusion of that period of incarceration. |
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| (c) |
The reduction of payments under Subsection (6)(a) or the tolling of payments pursuant to Subsection (6)(b) shall be determined by the same court that finds a petitioner to be factually innocent under 3, or this part. |
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| (7) |
| (a) |
An individual is ineligible for any payments under this part if the individual was already serving a prison sentence in another jurisdiction at the time of the conviction of the crime for which that individual has been found factually innocent in accordance with 3, or this part, and that individual is to be returned to that other jurisdiction upon release for further incarceration on the prior conviction. |
| (b) |
Ineligibility for any payments under this Subsection (7) shall be determined by the same court that finds an individual to be factually innocent under 3, or this part. |
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| (8) |
Payments under this section:
| (a) |
are not subject to any Utah state taxes; and |
| (b) |
may not be offset by any expenses incurred by the state or any political subdivision of the state, including expenses incurred to secure the petitioner’s custody, or to feed, clothe, or provide medical services for the petitioner. |
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| (9) |
If a court finds a petitioner to be factually innocent under 3, or this part, the court shall also:
| (a) |
issue an order of expungement of the petitioner’s criminal record for all acts in the charging document upon which the payment under this part is based; and |
| (b) |
provide a letter to the petitioner explaining that the petitioner’s conviction has been vacated on the grounds of factual innocence and indicating that the petitioner did not commit the crime or crimes for which the petitioner was convicted and was later found to be factually innocent under 3, or this part. |
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| (10) |
A petitioner found to be factually innocent under 3, or this part shall have access to the same services and programs available to Utah citizens generally as though the conviction for which the petitioner was found to be factually innocent had never occurred. |
| (11) |
| (a) |
Payments under this part constitute a full and conclusive resolution of the petitioner’s claims on the specific issue of factual innocence. |
| (b) |
Pre-judgment interest may not be awarded in addition to the payments provided under this part. |
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Amended by Chapter 36, 2021 General Session
