No. 39756 (Amendment): Rule R671-403. Restitution

(Amendment)

DAR File No.: 39756
Filed: 09/16/2015 06:03:19 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The existing rule does not clearly define the circumstances when the board may order restitution or the process for an individual to dispute an order of restitution.

Summary of the rule or change:

The board may order restitution for damages due to criminal conduct or a disciplinary violation. The board may base its decision on restitution ordered by a court, information in the pre-sentence investigation, or information submitted by the victim. The offender may submit evidence of credits, payments, or offsets for any restitution claimed. The offender may object to an order of restitution and request a hearing. Parole may be revoked or restarted for failure to pay restitution.

State statutory or constitutional authorization for this rule:

• Section 77-27-5
• Section 77-27-6
• Subsection 77-27-9(4)(a)
• Section 77-27-10
• Section 77-30-24
• Subsection 77-38a-203(2)(d)
• Section 77-38a-302
• Section 64-13-30
• Art. VII, Sec. 12
• Subsection 77-18-1(6)(b)
• Section 64-13-33

Anticipated cost or savings to:

the state budget:

Restitution is ordered and collected for the victim. Ordering restitution does not create a savings for any state agency. The proposed rule clarifies how restitution is ordered but does not change the accounting practices associated with collecting restitution. Therefore, the proposed rule does not impact the costs of collecting restitution.

local governments:

Local government is not involved in ordering or collecting restitution for individuals under the board�s jurisdiction. There is no cost impact to local governments.

small businesses:

Small business is not involved in ordering or collecting restitution for individuals under the board's jurisdiction. There is no cost impact to small business.

persons other than small businesses, businesses, or local governmental entities:

Restitution orders affect the person who committed the crime and the victim but the orders do not impact other persons.

Compliance costs for affected persons:

The offender does not bear any costs for objecting to restitution, submitting counter evidence, or requesting a hearing.

Comments by the department head on the fiscal impact the rule may have on businesses:

Businesses are not involved in the process of ordering or collecting restitution. The proposed rule does not affect businesses.

Angela Micklos, Board Chair

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Pardons (Board Of)
AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• Greg Johnson at the above address, by phone at 801-261-6454, by FAX at 801-261-6481, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/16/2015

Interested persons may attend a public hearing regarding this rule:

• 10/26/2015 08:00 AM, Board of Pardons, 448 E Winchester, Suite 300, Murray, UT

This rule may become effective on:

11/26/2015

Authorized by:

Angela Micklos, Chair

RULE TEXT

R671. Pardons (Board of), Administration.

R671-403. Restitution.

[R671-403-1. Policy.

The Board shall consider restitution in all cases where restitution has been ordered by the court, when requested by the Department of Corrections or other criminal justice agencies, or other appropriate cases.

 

R671-403-2. Procedure.

The Board may originate orders of restitution on any crime(s) of commitment in accordance with UCA 77-38a-302.

The Board shall affirm court-ordered restitution in accordance with UCA 77-38a-302.

The Board may consider ordering restitution in the following instances:

A. When ordered by or as part of a disciplinary proceeding as a result of inappropriate behavior;

B. When requested by the Department of Corrections or other criminal justice agency for the costs of extradition or return to custody.

C. When requested by the Department of Corrections for the costs of programs such as unpaid fees at community correction centers, therapy or other service fees; and

D. When new information is made available that was not available to the court at the time of sentencing or prior restitution hearing.

The Board may conduct a restitution hearing to determine the amount of restitution owed by an offender. The Board will make a reasonable effort to inform both the offender and the victim(s) of the hearing and will provide copies of rules and investigative reports and other documentation. The offender and the victim(s) shall have the right to be present at the hearing and present evidence in their behalf.

] R671-403-1. General Provisions.

(1) If the Board determines that a court has previously ordered or determined restitution applicable to any conviction, or that restitution is owed to any victim as a result of the conduct for which an offender was convicted, or any related conduct as authorized by state law to be considered, the Board may order restitution:

(a) as a condition of parole;

(b) as a contingency to be satisfied prior to release from prison incarceration earlier than sentence expiration; or

(c) to be converted to a civil judgment, pursuant to the provisions of applicable state law.

(2) The Board may, pursuant to the provisions of state law, determine and order an offender to pay restitution at any time while the offender is under the Board's jurisdiction, when:

(a) restitution has been ordered by the sentencing court;

(b) pecuniary damages to a victim occurred as a result of the offender's criminal conduct but were not determined or ordered by the sentencing court;

(c) requested by the Department of Corrections (Department) or other criminal justice agency.

(d) pecuniary damages to any person or entity are caused by an offender's disciplinary violation, conduct, or behavior arising during incarceration;

(e) new information regarding restitution is submitted to the Board which was not available or considered at the time of sentencing or a prior restitution determination; or

(f) the Board determines a restitution order is otherwise appropriate.

(3) Restitution determinations shall be:

(a) based upon a preponderance of the evidence; and

(b) made by a majority vote of the Board.

(4) When determining restitution, the provisions of Utah Code Sections 77-38a-302(1) and 77-38a-302(5)(a)-(b) shall apply.

(5) The Board may determine and order restitution based upon:

(a) prior orders made by a sentencing court;

(b) prior orders involving the same crimes, events, or incidents made by a court in the case of a co-defendant;

(c) amounts and determinations included in pre-sentence reports; or

(d) information received regarding restitution claimed or owed that the Board determines is relevant and reliable.

 

R671-403-2. Court-Ordered Restitution.

(1) The Board shall affirm restitution ordered by a court in accordance with Utah Code section 77-38a-302.

(2) An offender shall resolve objections regarding restitution entered by a court with the applicable court.

(3) The Board is not an appellate authority or forum in which to litigate restitution amounts previously ordered by a court.

(4) An offender may submit evidence of payments, credits, or offsets for consideration by the Board when determining restitution.

(5) The offender bears the burden to prove the validity and amounts of all payments, credits, or offsets submitted for consideration.

(6) If restitution was not determined or ordered by the sentencing court, the Board may, within one year of the imposition of sentence, refer the case back to the court for determination of restitution.

 

R671-403-3. Restitution Included in Pre-Sentence Report.

(1) If any party fails to challenge the accuracy of the restitution determinations, amounts, or information contained in a presentence report at the time of sentencing, that matter shall be considered waived, pursuant to Utah Code section 78-38a-203(2)(d), and the Board may order restitution based upon the information in the presentence investigation report.

(2) An offender may submit evidence of payments, credits, or offsets for consideration by the Board when determining restitution.

(3) The offender bears the burden to prove the validity and amounts of all payments, credits, or offsets submitted for consideration.

 

R671-403-4. Initial Restitution Determination.

(1) If restitution is not determined and ordered by the Board pursuant to R671-403-2 or R671-403-3, the Board may make an initial determination of restitution based upon the totality of the information available, including:

(a) restitution determinations made by a court applicable to a co-defendant for the same criminal conduct or the same victim;

(b) statements made by a victim, offender, or co-defendant relating to restitution, including statements made as part of a pre-sentence report investigation;

(c) reports or calculations provided by the Department indicating the amount which should be ordered as restitution;

(d) statements made in any civil or criminal proceeding;

(e) statements made in documents provided to the Board; or

(f) statements made during Board hearings.

(2) When the Board determines an initial restitution amount, the Board or the Department shall:

(a) inform the offender of the initial restitution determination; and

(b) inform the offender that any objection to the initial restitution determination must be filed with the Board in accordance with this rule.

(c) If the offender agrees with, or does not object to, the initial restitution determination, that restitution amount shall be ordered by the Board.

(d) If the offender objects to the initial restitution determination, the offender shall inform the Board of the objection and request a restitution hearing.

(e) The offender's objection and request for a hearing shall be:

(i) submitted to the Board in writing within 30 days of the initial restitution determination;

(ii) accompanied by a clear, brief statement explaining the offender's objections;

(iii) refer to or be accompanied by an explanation of any evidence, documents, or the names and addresses of witnesses upon which the offender will rely to support the objection.

(f) Following receipt of an offender's objection which complies with this section, the Board may modify the initial restitution amount based upon the materials submitted by the offender, or may schedule a restitution hearing.

(g) An offender's objection and request for a restitution hearing may be denied if the Board finds that the material submitted by the offender is duplicative, erroneous, lacks relevance or reliability, or fails to state a reason why the initial restitution determination should be modified.

(h) Failure of an offender to file a timely objection or otherwise comply with the requirements of this section shall waive and forfeit an offender's ability to contest a restitution order by the Board based upon the initial restitution determination.

 

R671-403-5. Restitution Hearings - Informal Resolution of Objection.

(1) Following the receipt of a timely objection to an initial restitution determination, the Board may designate a hearing officer or other Board employee to informally, and without hearing, attempt to resolve the offender's concerns or objections.

(2) This informal resolution may involve correspondence or an interview or other meeting with the offender.

(3) If an offender's objections to an initial restitution determination are not resolved, the Board shall schedule a restitution hearing.

 

R671-403-6. Restitution Hearings - Procedure.

(1) Restitution hearings may be conducted by a Board member, hearing officer, or other designee of the Board Chair.

(2) Board staff, the Department,the Attorney General's office, the original prosecuting agency, the offender, and any victim may participate in the restitution hearing, as necessary.

(3) Board staff may assist non-lawyer hearing participants with subpoenas to procure the attendance of necessary witnesses.

(4) The rules of evidence do not apply at restitution hearings.

(5) The offender bears the burden of proving all objections or assertions, including any payments, credits, or offsets, by a preponderance of the evidence.

(6) If any amount of restitution is claimed by, or on behalf of, any victim, in addition to any amount previously determined by a court or by the Board, including the initial restitution determination, the proponent of such additional restitution carries the burden of proving such additional restitution by a preponderance of the evidence.

(7) Any party may submit documentation, records, or other written evidence for the Board to consider regarding the issue of restitution.

(8) Within 30 days after the hearing, the Board shall enter an order determining the amount of restitution owed by the offender, or continue the matter for additional information, further hearing or further consideration as needed.

 

R671-403-7. Modifications to Restitution Orders.

Modifications to restitution orders may occur:

(1) upon a waiver and stipulation of the offender;

(2) upon receipt of new or subsequent court orders;

(3) when restitution claims, damages, or costs continue to accrue after sentencing;

(4) upon consideration of offender restitution payments, credits for payments made by others on the offender's behalf, offsets due to insurance or other third-party payments, or modifications based upon property being returned to a victim after the conclusion of court proceedings;

(5) when an open or on-going claim exists with the Utah Office for Victims of Crime;

(6) following an informal resolution regarding new restitution claims or offsets; or

(7) following subsequent restitution hearings.

 

R671-403-8. Compliance With Restitution Orders.

(1) While the offender is under Department or Board jurisdiction, the Department shall enforce the Board's restitution orders and parole conditions.

(2) As part of parole, the Board expects that parolees will make regular monthly payments based on the offender's ability to pay and in amounts sufficient to satisfy the restitution obligation during the parole period.

(3) The Board and the Department have jurisdiction over, and may continue to enforce restitution orders, in cases which may have terminated on or after July 1, 2005, if the Board has had continuing jurisdiction over the offender in any other case.

(4) The Department shall track cases for restitution payment and notify the Board in a timely manner of any action needed regarding restitution orders, payments, or lack of payment.

(5) If any restitution ordered by the Board or by a court has not been paid in full prior to a parole termination request, the Department shall inform the Board, as part of the termination request:

(a) how much of the offender's restitution obligation has been paid;

(b) how much of the restitution obligation, including post-judgment interest, remains unpaid;

(c) why the restitution obligation was not paid in full during the term of parole; and

(d) why parole should not be revoked or re-started because the restitution amounts were not paid in full during the parole period.

(6) If any restitution ordered by the Board or by a court has not been paid in full prior to a parole termination request, the Board may deny the parole termination request.

 

R671-403-9. Unpaid Restitution - Civil Judgments.

(1) If upon parole termination, sentence termination, termination of Board jurisdiction, or sentence expiration, an offender owes outstanding restitution, or if the Board makes an order of restitution within 60 days following the termination or expiration of the defendant's parole or sentence, the unpaid restitution shall be referred by the Board to the district court for the entry of a civil judgment and for civil collection remedies.

(2) The Board shall forward a restitution order to the sentencing court to be entered on the judgment docket. The entry shall constitute a lien and is subject to the same rules as a judgment for money in a civil judgment.

(3) If the Board has continuing jurisdiction over the offender for a separate criminal offense, the Board may defer seeking a civil judgment for restitution until termination or expiration of all of the offender's sentences. The restitution obligation for the terminating or expiring case shall be made a condition of parole for any separate or subsequent offense under continuing jurisdiction.

(4) The Board may order conversion of restitution to a civil judgment at any time, provided that the restitution amount was determined and ordered by:

(a) a Court;

(b) the Board during its jurisdiction over the offender; or

(c) the Board within 60 days following parole termination, sentence termination, sentence expiration, or other termination of Board jurisdiction.

 

KEY: restitution, government hearings, parole

Date of Enactment or Last Substantive Amendment: [September 27, 2007]2015

Notice of Continuation: July 27, 2012

Authorizing, and Implemented or Interpreted Law: Art. VII, Sec. 12; 64-13-30; 64-13-33; 77-18-1(6)(b); 77-27-5; 77-27-6; [ 77-27-5.5; ] 77-27-9(4)(a); 77-27-10; 77-30-24; 77-38a-203(2)(d); 77-38a-302

 

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