Capital Felony Case Amendments

103
76-3-206
76-3-207
77-15-5
77-15a-102
77-15a-101
77-15a-103
77-15a-104
77-15a-105
77-18a-1
77-18a-2
77-19-6
77-19-7
77-19-8
77-19-9
77-19-10
77-19-201
77-19-202
77-19-202.5
77-19-203
77-19-203.5
77-19-204
77-19-204.5
77-19-205
78A-3-102
78A-5-102
78B-9-202
0
Capital Felony Case Amendments
2026 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Candice B. Pierucci
Senate Sponsor: Daniel McCay

Cosponsor:
Stephanie Gricius
Jake Sawyer
Carl R. Albrecht
Matthew H. Gwynn
Mike Schultz
Tiara Auxier
Katy Hall
Troy Shelley
Jefferson S. Burton
Jon Hawkins
Rex P. Shipp
Kristen Chevrier
Ken Ivory
Casey Snider
Kay J. Christofferson
Karianne Lisonbee
Mark A. Strong
Tyler Clancy
Matt MacPherson
Christine F. Watkins
Ariel Defay
Nicholeen P. Peck
Stephen L. Whyte
James A. Dunnigan
Michael J. Petersen
Ryan D. Wilcox
Joseph Elison
Thomas W. Peterson
Doug Fiefia
Calvin Roberts
LONG TITLE
General Description:
This bill amends statutes related to capital felony cases.
Highlighted Provisions:
This bill:
defines and modifies terms related to capital felony cases;
clarifies the statutory provisions regarding a sentencing proceeding in a capital felony
case;
requires the sentencing court to advise a defendant in a capital felony case of the right to a
direct appeal and of the statutory provisions for postconviction relief;
requires the sentencing court to appoint appellate counsel for a defendant who is
sentenced to death;
modifies the automatic review process by the Utah Supreme Court in a capital felony case
in which the defendant is sentenced to death;
addresses the priority of capital felony cases;
addresses the extension of a report on a defendant's competency to stand trial;
allows for the appointment of a psychologist to determine if a defendant is intellectually
disabled when a prosecutor intends to seek a sentence of death;
modifies statutory provisions regarding the pretrial process for determining whether an
individual is intellectually disabled and not subject to a sentence of death;
allows for an appeal of an order determining whether a defendant is intellectually
disabled and not subject to a sentence of death;
clarifies statutes regarding the execution of a sentence of death;
modifies the requirements for a stay or suspension of a sentence of death and for an order
of execution;
modifies statutory provisions regarding a notification of pregnancy or incompetency of an
inmate who is sentenced to death;
addresses a petition for an inquiry on whether a defendant is competent to be executed,
including the requirements for a successive petition;
amends the examination process for a petition to determine whether an inmate is
competent to be executed;
addresses the procedures when there is a finding of competency or incompetency for an
inmate sentenced to death;
amends the subject matter jurisdiction of the Utah Supreme Court and the district court
with regard to a capital felony case;
provides that the Utah Supreme Court, after a direct appeal, appoint defense counsel to
represent an individual sentenced to death on a petition for postconviction relief;
requires the Utah Supreme Court to maintain a list of qualified defense counsel for
purposes of appointing defense counsel for an individual sentenced to death on a petition
for postconviction relief;
increases the amount of attorney fees and litigation expenses that a court may authorize
for a petition for postconviction relief in a death penalty case;
repeals a statute pertaining to capital cases; and
makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-3-206
, as last amended by Laws of Utah 2016, Chapter 277
76-3-207
, as last amended by Laws of Utah 2016, Chapter 277
77-15-5
, as last amended by Laws of Utah 2025, Chapter 46
77-15a-104
, as last amended by Laws of Utah 2023, Chapter 330
77-15a-105
, as last amended by Laws of Utah 2023, Chapter 330
77-18a-1
, as last amended by Laws of Utah 2021, Second Special Session, Chapter 4
77-19-6
, as last amended by Laws of Utah 2008, Chapter 382
77-19-8
, as last amended by Laws of Utah 2011, Chapter 165
77-19-9
, as last amended by Laws of Utah 2008, Chapter 382
77-19-10
, as last amended by Laws of Utah 2025, Chapter 299
77-19-203
, as last amended by Laws of Utah 2025, Chapter 46
77-19-204
, as last amended by Laws of Utah 2023, Chapter 330
77-19-205
, as last amended by Laws of Utah 2023, Chapter 330
78A-3-102
, as last amended by Laws of Utah 2025, Second Special Session, Chapter 3
78A-5-102
, as last amended by Laws of Utah 2025, Chapter 426
78B-9-202
, as last amended by Laws of Utah 2022, Chapter 120
ENACTS:
77-19-202.5
, Utah Code Annotated 1953
77-19-203.5
, Utah Code Annotated 1953
77-19-204.5
, Utah Code Annotated 1953
REPEALS AND REENACTS:
77-19-201
, as last amended by Laws of Utah 2005, Chapter 71
77-19-202
, as last amended by Laws of Utah 2008, Chapter 382
RENUMBERS AND AMENDS:
77-15a-101.1
, (Renumbered from 77-15a-102, as last amended by Laws of Utah 2016,
Chapter 115)
77-15a-101.5
, (Renumbered from 77-15a-101, as last amended by Laws of Utah 2016,
Chapter 115)
REPEALS:
77-15a-103
, as last amended by Laws of Utah 2016, Chapter 115
77-18a-2
, as enacted by Laws of Utah 1990, Chapter 7
77-19-7
, as last amended by Laws of Utah 1994, Chapter 13
Be it enacted by the Legislature of the state of Utah:
Section 1. Section
76-3-206
is amended to read:
76-3-206
. Capital felony -- Penalties.
(1)
A person
An individual
who has pled guilty to or been convicted of a capital felony
shall be sentenced in accordance with this section and Section
76-3-207
.
(2)
(a)
If the
person
individual
described in Subsection
(1)
was 18 years
of age
old
or
older at the time the offense was committed, the sentence shall be:
(i)
death;
(ii)
an indeterminate prison term of not less than 25 years and that may be for life; or
(iii)
on or after April 27, 1992, life in prison without parole.
(b)
Subsections
(2)(a)(i)
and
(2)(a)(iii)
do not apply if the
person was younger than 18
years of age
individual was under 18 years old
at the time the offense was committed
and was sentenced on or after May 10, 2016.
(3)
(a)
The judgment of conviction and sentence of death is subject to automatic review
by the Utah State Supreme Court within 60 days after certification by the sentencing
court of the entire record unless time is extended an additional period not to exceed
30 days by the Utah State Supreme Court for good cause shown.
(b)
The review by the Utah State Supreme Court has priority over all other cases and
shall be heard in accordance with rules promulgated by the Utah State Supreme Court.
Section 2. Section
76-3-207
is amended to read:
76-3-207
. Capital felony -- Sentencing proceeding -- Appeals.
(1)
(a)
When a defendant has pled guilty to or been found guilty of a capital felony,
there shall be further proceedings before the court or jury on the issue of sentence
a
further proceeding shall be conducted on the issue of the defendant's sentence for the
capital felony
.
(b)
In the case of a plea of
When a defendant has pled
guilty to a capital felony, the
sentencing
proceedings shall be
proceeding described in Subsection
(1)(a)
is

conducted before
:

(i)
a jury
or,
; or
(ii)
upon request of the defendant and with the approval of the court and the consent
of the prosecution,
by the court which
the court that
accepted the plea.
(c)
(i)
When a defendant has been found guilty of a capital felony, the
proceedings
shall be
sentencing proceeding described in Subsection
(1)(a)
is
conducted before

the court or jury which found the defendant guilty, provided the defendant may
waive hearing before the jury with the approval of the court and the consent of the
prosecution, in which event the hearing shall be before the court.
:
(A)
the jury that found the defendant guilty; or
(B)
the court upon a waiver by the defendant of the sentencing proceeding being
conducted before a jury, with approval of the court and the consent of the
prosecution.
(ii)
If circumstances make it impossible or impractical to
reconvene
continue with

the same jury for the
sentencing proceedings
sentencing proceeding
, the court
may dismiss that jury and convene a new jury for the
proceedings
proceeding
.
(d)
If a retrial of the sentencing
proceedings
proceeding
is necessary as a consequence
of a remand from an appellate court, the sentencing authority
shall be determined as
provided in
is determined in accordance with
Subsection
(6)
(13)
.
(2)
(a)
In
capital sentencing proceedings
a sentencing proceeding described in
Subsection
(1)(a)
, evidence may be presented on:
(i)
the nature and circumstances of the crime;
(ii)
the defendant's character, background, history, and mental and physical condition;
(iii)
the victim and the impact of the crime on the victim's family and community
without comparison to other persons or victims; and
(iv)
any other facts in aggravation or mitigation of the penalty that
the court
considers
are
relevant to the sentence.
(b)
(i)
Any evidence the court considers to have probative force may be received
regardless of
its
the evidence's
admissibility under the
exclusionary
rules of
evidence.
(ii)
The
state's attorney
prosecuting attorney
and the defendant shall be permitted to
present argument for or against the sentence of death.
(3)
Aggravating circumstances include those outlined in Section
76-5-202
.
(4)
(a)
As used in this Subsection
(4)
, "mental condition" does not include an
abnormality manifested primarily by repeated criminal conduct.
(b)
Mitigating circumstances include:
(a)
(i)
the defendant has no significant history of prior criminal activity;
(b)
(ii)
the homicide was committed while the defendant was under the influence of
mental or emotional disturbance;
(c)
(iii)
the defendant acted under duress or under the domination of another person;
(d)
(iv)
at the time of the homicide, the capacity of the defendant to appreciate the
wrongfulness of
his
the defendant's
conduct or to conform
his
the defendant's

conduct to the requirement of law was impaired as a result of a mental condition,
intoxication, or influence of drugs
, except that "mental condition" under this
Subsection
(4)(d)
does not mean an abnormality manifested primarily by repeated
criminal conduct
;
(e)
(v)
the youth of the defendant at the time of the crime;
(f)
(vi)
the defendant was an accomplice in the homicide committed by another
person
individual
and the defendant's participation was relatively minor; and
(g)
(vii)
any other fact in mitigation of the penalty.
(5)
(a)
The court or jury, as the case may be, shall retire to consider the
penalty
defendant's sentence
.
Except as provided in Subsections
76-3-207.5(2)
and
76-3-206(2)(b)
, in all proceedings before a jury, under this section, it shall be
instructed as to the punishment to be imposed upon a unanimous decision for death
and that the penalty of either an indeterminate prison term of not less than 25 years
and which may be for life or life in prison without parole, shall be imposed if a
unanimous decision for death is not found.
(b)
(6)
(a)
Except as provided in Subsections
76-3-206(2)(b)
and
76-3-207.5(2)
, the court
shall instruct a jury in a sentencing proceeding for a capital felony on the punishment
to be imposed in accordance with this Subsection
(6)
.
(b)
The
death penalty
sentence of death
shall only be imposed if, after considering the
totality of the aggravating and mitigating circumstances, the jury is persuaded beyond
a reasonable doubt that
:

(i)
total aggravation outweighs total mitigation
, and is further persuaded, beyond a
reasonable doubt, that
; and

(ii)
the imposition of the
death penalty
sentence of death
is justified and appropriate
in the circumstances.
(c)
If the jury reports
a
unanimous
agreement
decision
to impose the sentence of death,
the court shall
:

(i)
discharge the jury
;
and
shall
(ii)
impose the sentence of death.
(c)
(d)
If the jury is unable to reach a unanimous decision imposing the sentence of death,
the jury shall
then
determine whether the penalty of life in prison without parole
shall be imposed, except as provided in Subsection
76-3-207.5(2)
.
(e)
The penalty of life in prison without parole shall only be imposed if the jury
determines that the sentence of life in prison without parole is appropriate.
(f)
If the jury reports agreement by 10 jurors or more to impose the sentence of life in
prison without parole, the court shall
:

(i)
discharge the jury
and shall
; and

(ii)
impose the sentence of life in prison without parole.
(g)
If 10 jurors or more do not agree upon a sentence of life in prison without parole, the
court shall
:

(i)
discharge the jury
;
and
(ii)
impose an indeterminate prison term of not less than 25 years and which may be
for life.
(d)
(7)
If the defendant waives hearing before the jury as to sentencing, with the approval
of the court and the consent of the prosecution
If the sentencing proceeding described in
Subsection
(1)(a)
is conducted before the court as described in Subsection
(1)(b)
or (c)
,
the court shall determine the appropriate penalty according to the standards of
Subsections
(5)(b)
and
(c)
Subsection
(6)
.
(e)
(8)
If the defendant is sentenced to more than one term of life in prison with or without
the possibility of parole, or in addition to a sentence of life in prison with or without the
possibility of parole the defendant is sentenced for other offenses
which
that
result in
terms of imprisonment, the
judge
court
shall determine whether the terms of
imprisonment shall be imposed as concurrent or consecutive sentences in accordance
with Section
76-3-401
.
(6)
Upon any appeal by the defendant where the sentence is of death, the appellate court, if
it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of
death and remand the case to the trial court for new sentencing proceedings to the extent
necessary to correct the error or errors. An error in the sentencing proceedings may not
result in the reversal of the conviction of a capital felony. In cases of remand for new
sentencing proceedings, all exhibits and a transcript of all testimony and other evidence
properly admitted in the prior trial and sentencing proceedings are admissible in the new
sentencing proceedings, and if the sentencing proceeding was before a:
(a)
jury, a new jury shall be impaneled for the new sentencing proceeding unless the
defendant waives the hearing before the jury with the approval of the court and the
consent of the prosecution, in which case the proceeding shall be held according to
Subsection
(6)(b)
or
(c)
, as applicable;
(b)
judge, the original trial judge shall conduct the new sentencing proceeding; or
(c)
judge, and the original trial judge is unable or unavailable to conduct a new
sentencing proceeding, then another judge shall be designated to conduct the new
sentencing proceeding, and the new proceeding will be before a jury unless the
defendant waives the hearing before the jury with the approval of the court and the
consent of the prosecution.
(9)
(a)
If a defendant is sentenced to death, the court shall:
(i)
advise the defendant, at the sentencing proceeding, of the defendant's right to a
direct appeal and of the provisions for postconviction relief in Title 78B, Chapter
9, Part 1, General Provisions; and
(ii)
appoint appellate counsel for the defendant in accordance with the requirements
for a capital case under Rule 8 of the Utah Rules of Criminal Procedure and Title
78B, Chapter 22, Indigent Defense Act.
(b)
Subsection
(9)(a)(ii)
does not prevent the defendant from obtaining private counsel
or waiving the appointment of appellate counsel.
(10)
(a)
If a defendant is convicted and sentenced to death for a capital felony and the
defendant waives the defendant's right to an appeal or fails to file a timely notice of
appeal:
(i)
the judgment is subject to automatic review by the Supreme Court as to whether
there was manifest injustice; and
(ii)
the sentencing court shall promptly certify the entire record of the defendant's
case to the Supreme Court.
(b)
The Supreme Court shall conduct the automatic review of a defendant's case within
120 days after the day on which the sentencing court certifies the entire record of the
defendant's case.
(c)
Except as provided in Subsection
(10)(d)
, an automatic review is conducted without
briefing from any party.
(d)
If the Supreme Court determines that the conviction should be modified, or the
conviction or sentence should be vacated, upon an automatic review:
(i)
the Supreme Court shall request that the attorney general submit briefing to
address the error for which the Supreme Court determined that the conviction
should be modified or the conviction or sentence should be vacated; and
(ii)
the Supreme Court may appoint an amicus curae to submit briefing in place of the
defendant.
(e)
Upon any briefing described in Subsection
(10)(d)
, the Supreme Court may modify
the conviction, or affirm or vacate the conviction or sentence, of the defendant.
(11)
(a)
A reversible error in a sentencing proceeding for a capital felony does not result
in the reversal of the conviction for the capital felony.
(b)
If the Supreme Court remands a capital felony case for a new sentencing proceeding,
all exhibits and a transcript of all testimony and other evidence that was properly
admitted in the prior trial and sentencing proceeding are admissible in the new
sentencing proceeding.
(12)
(a)
An automatic review described in Subsection
(10)
has priority over all other
cases before the Supreme Court.
(b)
An appeal or petition for extraordinary relief in a capital felony case has priority over
all noncapital felony cases before the Supreme Court and should be expedited.
(c)
A petition for postconviction relief in a capital case has priority over all other cases
in the district court, except for a trial of a capital felony case, and should be expedited.
(13)
On a remand for a new sentencing proceeding, the new sentencing proceeding is
conducted before:
(a)
except as provided in Subsection
(13)(b)
or (c), a new jury if:
(i)
the prior sentencing proceeding was conducted before a jury; or
(ii)
the prior sentencing proceeding was conducted before the court and the original
trial judge is unable or unavailable to conduct the new sentencing proceeding;
(b)
the original trial judge if:
(i)
the defendant waives the new sentencing proceeding being conducted before a
jury, with the approval of the court and the consent of the prosecution; and
(ii)
the prior sentencing proceeding was conducted before the court; or
(c)
a new trial judge if:
(i)
the defendant waives the new sentencing proceeding being conducted before a
jury, with the approval of the court and the consent of the prosecution; and
(ii)
the original trial judge is unable or unavailable to conduct the new sentencing
proceeding.
(7)
(14)
If the
penalty
sentence
of death is held to be unconstitutional by the Utah
Supreme Court or the United States Supreme Court, the court having jurisdiction over a
person
defendant
previously sentenced to death for a capital felony shall
:

(a)
cause the
person
defendant
to be brought before the court
, and the court shall
; and
(b)
sentence the
person
defendant
to life in prison without parole.
(8)
(15)
(a)
If the appellate court's final decision regarding any appeal of a sentence of
death precludes the imposition of
the death penalty due to mental retardation or
subaverage general intellectual functioning under Section
77-15a-101
the sentence of
death due to an intellectual disability as described in Section
77-15a-101.5
, the court
having jurisdiction over a defendant previously sentenced to death for a capital
felony shall
:

(i)
cause the defendant to be brought before the
sentencing court, and the court shall
court; and

(ii)
sentence the defendant to life in prison without parole.
(b)
If the appellate court precludes the imposition of the
death penalty
sentence of death

under Subsection
(8)(a)
(15)(a)
, but the appellate court finds that sentencing the
defendant to life in prison without parole is likely to result in a manifest injustice,
it
the appellate court
may remand the case to the sentencing court for
further
sentencing proceedings
a sentencing proceeding
to determine if the defendant should
serve a sentence of life in prison without parole or an indeterminate prison term of
not less than 25 years and which may be for life.
Section 3. Section
77-15-5
is amended to read:
77-15-5
. Order for hearing -- Stay of other proceedings -- Examinations of
defendant -- Scope of examination and report.
(1)
A court in which criminal proceedings are pending shall stay all criminal proceedings, if:
(a)
a petition is filed under Section
77-15-3
or
77-15-3.5
; or
(b)
the court raises the issue of the defendant's competency under Section
77-15-4
.
(2)
The court in which the petition described in Subsection
(1)(a)
is filed:
(a)
shall inform the court in which criminal proceedings are pending of the petition, if
the petition is not filed in the court in which criminal proceedings are pending;
(b)
shall review the allegations of incompetency;
(c)
may hold a limited hearing solely for the purpose of determining the sufficiency of
the petition, if the court finds the petition is not clearly sufficient on its face;
(d)
shall hold a hearing, if the petition is opposed by either party; and
(e)
may not order an examination of the defendant or order a hearing on the mental
condition of the defendant unless the court finds that the allegations in the petition
raise a bona fide doubt as to the defendant's competency to stand trial.
(3)
(a)
If the court finds that there is a bona fide doubt as to the defendant's competency
to stand trial, the court shall order the department to have one or two forensic
evaluators complete a competency evaluation for the defendant in accordance with
Subsection
(3)(b)
and provide a report to the court regarding the competency of the
defendant to stand trial.
(b)
The court shall order the department to have the defendant evaluated by one forensic
evaluator unless:
(i)
the defendant is charged with a capital felony; or
(ii)
the defendant is charged with a felony that is not a capital felony, and the court
determines, based on the allegations in the petition, that good cause exists to order
two competency evaluations.
(c)
(i)
This section does not prohibit a party from seeking an additional forensic
evaluator to conduct a competency evaluation of the defendant.
(ii)
If a party seeks an additional competency evaluation under this Subsection
(3)(c)
,
the party shall:
(A)
select the additional forensic evaluator; and
(B)
pay the costs of the additional forensic evaluator.
(d)
The stipulation by parties to a bona fide doubt as to the defendant's competency to
stand trial alone may not take the place of a competency evaluation ordered under
this Subsection
(3)
.
(e)
In accordance with state licensing laws, the court may only order the department to
provide an initial evaluation and progress toward competency evaluation for a
defendant who is located within the state.
(4)
(a)
If the petition or other information sufficiently raises concerns that the defendant
may have an intellectual disability, at least one forensic evaluator who is experienced
in assessments of intellectual disabilities shall conduct a competency evaluation.
(b)
The petitioner or other party, as directed by the court or requested by the department,
shall provide to the forensic evaluator nonmedical information and materials relevant
to a determination of the defendant's competency, including the charging document,
arrest or incident reports pertaining to the charged offense, known criminal history
information, and known prior mental health evaluations and treatments.
(c)
For purposes of a competency evaluation, a custodian of mental health records
pertaining to the defendant, including the defendant's prior mental health evaluations
or records relating to the defendant's substance use disorder, may provide the records
to:
(i)
with the defendant's consent, a forensic evaluator or the department on the
department's request; or
(ii)
a forensic evaluator by court order.
(d)
A court order under Subsection
(4)(c)
shall include a protective order that expires
180 days after the day on which:
(i)
the defendant is found guilty;
(ii)
the defendant enters a guilty plea;
(iii)
the court sentences the defendant; or
(iv)
if the case is appealed, the day on which the final appeal is resolved.
(e)
(i)
Except as otherwise provided by law and in Subsections
(4)(e)(ii)
and
(4)(f)
,
the court shall order the forensic evaluator to destroy all records subject to the
protective order within the 180 day period described in Subsection
(4)(d)
.
(ii)
A forensic evaluator is not required to destroy the records subject to the
protective order if destroying the records is a violation of ethical standards to
which the forensic evaluator is subject for occupational licensing.
(f)
The court may extend the protective order described in Subsection
(4)(d)
if:
(i)
the court finds the defendant incompetent to proceed without a substantial
probability that the defendant will become competent in the foreseeable future;
(ii)
the prosecutor or another individual indicates to the court that the prosecutor or
other individual will seek civil commitment of the defendant under Section
77-15-6
; and
(iii)
the court orders the records be maintained and used only for the purposes of
examining the defendant in connection with the petition for civil commitment.
(g)
An order for a competency evaluation may not contain an order for any other inquiry
into the mental state of the defendant that is not described in this Subsection
(4)
.
(5)
Pending a competency evaluation, unless the court or the department directs otherwise,
the defendant shall be retained in the same custody or status that the defendant was in at
the time the examination was ordered.
(6)
In the conduct of a competency evaluation and in a report to the court, a forensic
evaluator shall consider and address, in addition to any other factors determined to be
relevant by the forensic evaluator:
(a)
the impact of the defendant's mental illness or intellectual disability on the
defendant's present ability to:
(i)
rationally and factually understand the criminal proceedings against the defendant;
and
(ii)
consult with the defendant's legal counsel with a reasonable degree of rational
understanding in order to assist in the defense;
(b)
in making the determinations described in Subsection
(6)(a)
, the forensic evaluator
shall consider, as applicable the defendant's present ability to:
(i)
understand the charges or allegations against the defendant;
(ii)
communicate facts, events, and states of mind;
(iii)
understand the range of possible penalties associated with the charges or
allegations against the defendant;
(iv)
engage in reasoned choice of legal strategies and options;
(v)
understand the adversarial nature of the proceedings against the defendant;
(vi)
manifest behavior sufficient to allow the court to proceed; and
(vii)
testify relevantly, if applicable; and
(c)
whether the defendant is exhibiting false or exaggerated physical or psychological
symptoms relevant to the defendant's capacity to stand trial.
(7)
Upon a determination that the defendant is incompetent to proceed, the forensic
evaluator shall indicate in the report to the court:
(a)
the factors that contribute to the defendant's incompetency, including the nature of
the defendant's mental illness or intellectual disability, if any, and its relationship to
the factors contributing to the defendant's incompetency;
(b)
whether there is a substantial probability that:
(i)
restoration treatment may bring the defendant to competency to stand trial in the
foreseeable future; or
(ii)
the defendant cannot become competent to stand trial in the foreseeable future;
(c)
whether the defendant would benefit from restoration treatment; and
(d)
if the forensic evaluator makes the determination under Subsection
(7)(b)(i)
or
(7)(c)
,
an explanation of the reason for the determination and a summary of the treatment
provided to the defendant in the past.
(8)
(a)
(i)
A forensic evaluator shall provide an initial report to the court and the
prosecuting and defense attorneys within 30 days of the receipt of the court's
order.
(ii)
The report shall inform the court of the examiner's opinion concerning the
competency of the defendant to stand trial.
(b)
(i)
If the forensic evaluator is unable to complete the report in the time specified in
Subsection
(8)(a)
, the forensic evaluator shall give written notice to the court.
(ii)
A forensic evaluator who provides the notice described in Subsection
(8)(b)(i)

shall receive a 15-day extension, giving the forensic evaluator a total of 45 days
after the day on which the forensic evaluator received the court's order to conduct
a competency evaluation and file a report.
(iii)
The
Except as provided in Subsection
(8)(b)(iv)
, the
court may further extend
the deadline for completion of the evaluation and report if the court determines
that there is good cause for the extension.
(iv)
If an extension is sought because the forensic evaluator has been appointed to
examine an inmate for competency to be executed or has been called to testify at a
competency hearing described in Section
77-19-204
, the court shall further extend
the deadline to complete the report on the defendant's competency to stand trial.
(iv)
(v)
Upon receipt of an extension described in Subsection
(8)(b)(iii)
, the forensic
evaluator shall file the report as soon as reasonably possible.
(9)
Any written report submitted by a forensic evaluator shall:
(a)
identify the case ordered for evaluation by the case number;
(b)
describe the procedures, techniques, and tests used in the examination and the
purpose or purposes for each, the time spent by the forensic evaluator with the
defendant for purposes of the examination, and the compensation to be paid to the
evaluator for the report;
(c)
state the forensic evaluator's clinical observations, findings, and opinions on each
factor described in Subsection
(6)
; and
(d)
identify the sources of information used by the forensic evaluator and present the
basis for the forensic evaluator's clinical findings and opinions.
(10)
(a)
Any statement made by the defendant in the course of any competency
examination, whether the examination is with or without the consent of the
defendant, any testimony by a forensic evaluator based upon the statement, and any
other fruits of the statement may not be admitted in evidence against the defendant in
any criminal proceeding except on an issue respecting mental condition on which the
defendant has introduced evidence, unless the evidence is relevant to a determination
of the defendant's competency.
(b)
Before examining the defendant, the forensic evaluator shall specifically advise the
defendant of the limits of confidentiality as provided under Subsection
(10)(a)
.
(11)
(a)
Upon receipt of the forensic evaluators' reports, the court shall set a date for a
competency hearing. The hearing shall be held not less than five and not more than
15 days after the day on which the court received the forensic evaluators' reports,
unless for good cause the court sets a later date.
(b)
Any person directed by the department to conduct the competency evaluation may be
subpoenaed to testify at the hearing.
(c)
The court may call any forensic evaluator to testify at the hearing who is not called
by the parties. If the court calls a forensic evaluator, counsel for the parties may
cross-examine the forensic evaluator.
(d)
(i)
If the forensic evaluators are in conflict as to the competency of the defendant,
all forensic evaluators should be called to testify at the hearing if reasonably
available.
(ii)
A conflict in the opinions of the forensic evaluators does not require the
appointment of an additional forensic evaluator unless the court finds good cause
for the appointment.
(iii)
If a party seeks an additional competency evaluation under this Subsection
(11)
,
that party shall:
(A)
select the additional forensic evaluator; and
(B)
pay the costs of the additional forensic evaluator.
(12)
(a)
(i)
A defendant shall be presumed competent to stand trial unless the court, by
a preponderance of the evidence, finds the defendant incompetent to proceed.
(ii)
The burden of proof is upon the proponent of incompetency at the hearing.
(b)
An adjudication of incompetent to proceed does not operate as an adjudication of
incompetency to give informed consent for medical treatment or for any other
purpose, unless specifically set forth in the court order.
(13)
In determining the defendant's competency to stand trial, the court shall consider the
totality of the circumstances, including:
(a)
the petition;
(b)
the defendant's criminal and arrest history;
(c)
prior mental health evaluations and treatments provided to the court by the defendant;
(d)
subject to Subsection
(15)
, whether the defendant was found incompetent to proceed
in a criminal action unrelated to the charged offense for which the petition is filed;
(e)
the testimony of lay witnesses, if any;
(f)
the forensic evaluator's testimony and report;
(g)
the materials on which the forensic evaluator's report is based; and
(h)
any other relevant evidence or consideration bearing on the competency of the
defendant.
(14)
If the court finds the defendant incompetent to proceed:
(a)
the court shall issue the order described in Subsection
77-15-6(1)
, which shall:
(i)
include findings addressing each of the factors in Subsection
(6)(a)
;
(ii)
include a transportation order, if necessary;
(iii)
be accompanied by the forensic evaluators' reports, any psychiatric,
psychological, or social work reports submitted to the court relative to the mental
condition of the defendant, and any other documents made available to the court
by either the defense or the prosecution, pertaining to the defendant's current or
past mental condition; and
(iv)
be sent by the court to the department; and
(b)
the prosecuting attorney shall provide to the department:
(i)
the charging document and probable cause statement, if any;
(ii)
arrest or incident reports prepared by law enforcement and pertaining to the
charged offense; and
(iii)
additional supporting documents.
(15)
The court may not find the defendant incompetent to proceed based solely on a court
having ordered the release of the defendant under Section
77-15-3.5
or Section
77-15-6

in an unrelated criminal action if the court in the unrelated criminal action ordered the
release more than one year before the day on which the petition described in Subsection
(13)(a)
is filed.
(16)
The court may make any reasonable order to ensure compliance with this section.
(17)
Failure to comply with this section does not result in the dismissal of criminal charges.
Section 4. Section
77-15a-101.1
, which is renumbered from Section 77-15a-102 is renumbered
and amended to read:
77-15a-102
77-15a-101.1
. Definitions for chapter.
As used in this chapter
, a defendant is " intellectually disabled" if
:
(1)
"Intellectually disabled" means:
(a)
the defendant has
significant subaverage general intellectual functioning that
results in and
exists concurrently with significant deficiencies in adaptive functioning
that exist primarily in the areas of reasoning or impulse control, or in both of these
areas
; and
(2)
(b)
the subaverage general intellectual functioning and the significant deficiencies
in adaptive functioning
under Subsection
(1)
described in Subsection
(1)(a)
are both
manifested
prior to age 22
before the individual is 22 years old
.
(2)
"Prescreening psychologist" means a psychologist who:
(a)
is licensed in accordance with Title 58, Chapter 61, Psychologist Licensing Act; and
(b)
has at least five years of experience in testing, evaluating, and diagnosing individuals
as intellectually disabled.
Section 5. Section
77-15a-101.5
, which is renumbered from Section 77-15a-101 is renumbered
and amended to read:
77-15a-101
77-15a-101.5
. Intellectually disabled defendant not subject to a
sentence of death.
(1)
A defendant who is found by the court to be intellectually disabled
as defined in
Section
77-15a-102

is not subject to
the death penalty
a sentence of death
.
(2)
A defendant who does not meet the definition of intellectually disabled under Section
77-15a-102
is not subject to the death penalty if:
(a)
the defendant has significantly subaverage general intellectual functioning that
exists concurrently with significant deficiencies in adaptive functioning;
(b)
the functioning described in Subsection
(2)(a)
is manifested prior to age 22; and
(c)
the state intends to introduce into evidence a confession by the defendant which is
not supported by substantial evidence independent of the confession.
Section 6. Section
77-15a-104
is amended to read:
77-15a-104
. Hearing -- Notice -- Stay of proceeding -- Examinations of defendant
-- Scope of examination -- Report -- Procedures.
(1)
(a)
If a defendant proposes to offer evidence concerning or argue that he qualifies
for an exemption from the death penalty under Subsection
77-15a-101(1)
or
(2)
, the
defendant shall file and serve the prosecuting attorney with written notice of his
intention as soon as practicable, but not fewer than 60 days before trial.
(b)
If the defendant wishes to claim the exemption provided in Subsection
77-15a-101(2)
, the defendant shall file and serve the prosecuting attorney with
written notice of his intention as soon as practicable, but not fewer than 60 days
before trial.
(2)
When notice is given under Subsection
(1)
, the court raises the issue, or a motion is
filed regarding Section
77-15a-101
, the court may stay all proceedings in order to
address the issue.
(1)
If a prosecuting attorney files a notice of intent to seek a sentence of death, and unless
the defendant objects to the appointment, the court shall appoint a prescreening
psychologist to determine the defendant's intelligence quotient using the procedures for
determining a
n intelligence quotient that are the medical community's standards at the
time of appointment.
(2)
(a)
If a defendant objects to the appointment of a prescreening psychologist as
described in Subsection
(1)
, the defendant waives the right to assert that the
defendant is intellectually disabled for purposes of establishing that the defendant is
not subject to a sentence of death.
(b)
The court shall make a determination on the record as to whether the defendant's
waiver under Subsection
(2)(a)
is knowing and voluntary.
(c)
A waiver under this Subsection
(2)
does not preclude the defendant from offering
evidence of the defendant's mental capacity as mitigation evidence in the sentencing
proceeding described in Section
76-3-207
.
(3)
(a)
Within 30 days after that day on which the defendant is tested by an appointed
prescreening psychologist, the prescreening psychologist shall submit a written report
to the court on the prescreening psychologist's determination of the defendant's
intelligence quotient.
(b)
The court may grant the prescreening psychologist an extension under Subsection
(3)(a)
upon a showing of good cause.
(4)
(a)
(i)
If a prescreening psychologist determines that the defendant's intelligence
quotient is higher than 75:
(A)
the defendant shall present any evidence of significant subaverage general
intellectual functioning or significant deficiencies in adaptive functioning
within 30 days after the day on which the prescreening psychologist submits
the report described in Subsection
(3)
; and
(B)
except as provided in Subsection
(4)(c)
, the court shall make the prescreening
psychologist's report available to the defendant but seal the report as to all
other persons.
(ii)
The court may grant the defendant an extension under Subsection
(4)(a)(i)(A)

upon a showing of good cause.
(b)
If a prescreening psychologist determines that the defendant's intelligence quotient is
higher than 75 and the defendant presents no contrary evidence under Subsection
(4)(a)(i)(A)
:
(i)
no further examination of the defendant may be ordered under this section; and
(ii)
the court shall enter an order stating that a sentence of death is a sentencing
option in the case before the court.
(c)
The court shall release the prescreening psychologist's report on the motion of any
party if:
(i)
the court orders an examination as described in Subsection
(6)
; or
(ii)
the defendant introduces the report in the case before or after conviction or in any
related collateral proceeding.
(d)
A determination by a prescreening psychologist that the defendant's intelligence
quotient is higher than 75 does not preclude the defendant from introducing evidence
of the defendant's mental capacity at the sentencing proceeding described in Section
76-3-207
.
(5)
If the prescreening psychologist determines that the defendant's intelligence quotient is
75 or less, or the defendant presents evidence of an intellectual disability as described in
Subsection
(4)(a)(i)
(A):
(a)
the court may stay all proceedings in order to address the issue of whether the
defendant is intellectually disabled; and
(b)
the court shall order an examination of the defendant as described in Subsection
(6)
.
(3)
(6)
(a)
The court shall order the Department of Health and Human Services to
appoint at least two mental health experts to examine the defendant and report to the
court.
(b)
The experts
An examiner described in Subsection
(6)(a)
:
(i)
may not be involved in the current treatment of the defendant; and
(ii)
shall have expertise in intellectual disability assessment.
(b)
(c)
Upon appointment of
the experts
the examiners
, the defendant
,
or other party as
directed by the court
,
shall provide information and materials to the examiners
relevant to a determination
of the defendant's intellectual disability
of whether the
defendant is intellectually disabled
, including
:

(i)
copies of the charging document
,
;
(ii)
arrest or incident reports pertaining to the charged offense
,
;
(iii)
known criminal history information
, and
; and
(iv)
known prior mental health evaluations and treatments.
(c)
(d)
The court may make the necessary orders to provide the information listed in
Subsection
(3)(b)
(6)(c)
to the examiners.
(d)
(e)
The court may provide in
its
the court's
order appointing the examiners that
custodians of mental health records pertaining to the defendant shall provide those
records to the examiners without the need for consent of the defendant or further
order of the court.
(e)
(f)
Prior to
Before
examining the defendant,
examiners
an examiner
shall
specifically advise the defendant of the limits of confidentiality as provided under
Section
77-15a-106
.
(4)
(7)
During any examinations under Subsection
(3)
(6)
,
and
unless the court directs
otherwise, the defendant shall be retained in the same custody or status
he
the defendant

was in at the time the examination was ordered.
(5)
(8)
The experts
An examiner described in Subsection
(6)(a)
shall
,
in the conduct of
their examinations and in their reports
the examiner's examinations and reports
to the
court
,
consider and address:
(a)
whether the defendant is intellectually disabled
as defined in Section
77-15a-102
;

and
(b)
the degree of any intellectual disability the expert finds to exist;
(c)
whether the defendant is intellectually disabled as specified in Subsection
77-15a-101(2)
; and
(d)
(b)
the degree of any intellectual disability the
expert
examiner
finds to exist.
(6)
(9)
(a)
The experts examining the defendant
An examiner
shall provide
written
reports
a written report
to the court, the prosecution, and the defense within 60 days
of the receipt of
after the day on which the examiner receives
the court's order, unless
the
expert
examiner
submits to the court a written request for additional time in
accordance with Subsection
(6)(c)
(9)(c)
.
(b)
The
reports
written report
shall provide
,
to the court and to prosecution and defense
counsel
,
the
examiners'
examiner's
written opinions concerning
the intellectual
disability of the defendant
whether the defendant is intellectually disabled
.
(c)
If an examiner requests of the court additional time, the examiner shall provide the
report to the court and counsel within 90 days
from the receipt of the court's order
unless, for good cause shown,
after the day on which the examiner receives the
court's order, unless
the court authorizes
, for good cause shown,
an additional period
of time to complete the examination and provide the report.
(7)
(10)
Any written report submitted by an
expert
examiner under Subsection
(9)
shall:
(a)
identify the specific matters referred for evaluation;
(b)
describe the procedures, techniques, and tests used in the examination and the
purpose or purposes for each;
(c)
state the
expert's
examiner's
clinical observations, findings, and opinions; and
(d)
identify the sources of information used by the
expert
examiner
and present the
basis for the
expert's
examiner's
clinical findings and opinions.
(8)
(11)
Within 30 days after
receipt of
receiving
the report from the Department of
Health and Human Services, but not later than five days before hearing, or at any other
time the court directs, the prosecuting attorney shall file and serve upon the defendant a
notice of witnesses the prosecuting attorney proposes to call in rebuttal.
(9)
(12)
(a)
Except pursuant to Section
77-15a-105
, this chapter does not prevent any
party from producing any other testimony as to the
mental condition
intellectual or
adaptive functioning
of the defendant.
(b)
Expert witnesses who are not appointed by the court are not entitled to compensation
under Subsection
(10)
(13)
.
(10)
(13)
(a)
Expenses
The Department of Health and Human Services shall pay the
expenses
of examinations of the defendant ordered by the court under this section

shall be paid by the Department of Health and Human Services
.
(b)
Travel
The Department of Health and Human Services shall charge travel
expenses
associated with any court-ordered examination that are incurred by the defendant
shall be charged by the Department of Health and Human Services
to the county
where prosecution is commenced.
(11)
(14)
(a)
(i)
When the report is received, the court shall set a date for a hearing

that is within a reasonable time before jury selection
to determine if the exemption
under Section
77-15a-101
77-15a-101.5
applies.
The hearing shall be held and
the judge shall make the determination within a reasonable time prior to jury
selection.
(ii)
The court shall make a determination described in Subsection
(14)(a)(i)
within a
reasonable time before jury selection.
(b)
Prosecution and defense counsel may subpoena to testify at the hearing any person or
organization appointed by the Department of Health and Human Services to conduct
the examination and any independent examiner.
(c)
(i)
The court may call any examiner to testify at the hearing who is not called by
the parties.
(ii)
If the court calls an examiner, counsel for the parties may cross-examine that
examiner.
(12)
(15)
(a)
A defendant is presumed not to be intellectually disabled unless the court,
by a preponderance of the evidence, finds the defendant to be intellectually disabled.
(b)
The burden of proof is upon the proponent of intellectual disability at the hearing.
(b)
(c)
A finding of intellectual disability does not operate as an adjudication of
intellectual disability for any purpose other than exempting the
person
defendant

from a sentence of death in the case before the court.
(13)
(a)
The defendant is presumed not to possess the mental deficiencies listed in
Subsection
77-15a-101(2)
unless the court, by a preponderance of the evidence, finds
that the defendant has significant subaverage general intellectual functioning that
exists concurrently with significant deficiencies in adaptive functioning and that this
functioning was manifested prior to age 22. The burden of proof is upon the
proponent of that proposition.
(b)
If the court finds by a preponderance of the evidence that the defendant has
significant subaverage general intellectual functioning that exists concurrently with
significant deficiencies in adaptive functioning and that this functioning was
manifested prior to age 22, then the burden is upon the state to establish that any
confession by the defendant which the state intends to introduce into evidence is
supported by substantial evidence independent of the confession.
(14)
(16)
(a)
If the court finds the defendant
is
intellectually disabled,
it
the court
shall
issue an order:
(i)
containing findings of fact and conclusions of law, and addressing each of the
factors in Subsections
(5)(a)
(8)(a)
and
(b)
; and
(ii)
stating that
the death penalty
a sentence of death
is not a sentencing option in the
case before the court.
(b)
If the court finds by a preponderance of the evidence that the defendant possesses
the mental deficiencies listed in Subsection
77-15a-101(2)
and that the state fails to
establish that any confession is supported by substantial evidence independent of the
confession, the state may proceed with its case and:
(i)
introduce the confession into evidence, and the death penalty will not be a
sentencing option in the case; or
(ii)
not introduce into evidence any confession or the fruits of a confession that the
court has found is not supported by substantial evidence independent of the
confession, and the death penalty will be a sentencing option in the case.
(c)
(b)
(i)
A finding by the court regarding whether the defendant qualifies for an
exemption under Section
77-15a-101
77-15a-101.5
is a final determination of
that issue for purposes of this chapter.
(ii)
The following questions
Whether the defendant is intellectually disabled for
purposes of this chapter
may not be submitted to the jury by instruction, special
verdict, argument, or other means
:
.
(A)
whether the defendant is intellectually disabled for purposes of this chapter;
and
(B)
whether the defendant possesses the mental deficiencies specified in
Subsection
77-15a-101(2)
.
(iii)
This chapter does not prevent the defendant from submitting evidence of
intellectual disability or other mental deficiency to establish a mental condition as
a mitigating circumstance under Section
76-3-207
.
(15)
A ruling by the court that the defendant is exempt from the death penalty may be
appealed by the state pursuant to Section
77-18a-1
.
(16)
(17)
Failure to comply with this section does not result in the dismissal of criminal
charges.
Section 7. Section
77-15a-105
is amended to read:
77-15a-105
. Defendant's wilful failure to cooperate -- Expert testimony
regarding intellectual disability is barred.
(1)
If the defendant files notice, raises the issue, or intends to present evidence or make an
argument that the defendant is exempt from the death penalty
If the defendant presents
evidence or makes an argument that the defendant is exempt from a sentence of death

under this chapter, the defendant shall make himself
or herself
available and fully
cooperate in any examination by mental health experts appointed by the Department of
Health and Human Services and any other independent examiners for the defense or the
prosecution.
(2)
If the defendant wilfully fails to make himself
or herself
available and fully cooperate in
the examination, and that failure is established to the satisfaction of the court, the
defendant is barred from presenting expert testimony relating to any exemption from
the death penalty
a sentence of death
under this chapter.
Section 8. Section
77-18a-1
is amended to read:
77-18a-1
. Appeals -- When proper.
(1)
A defendant may, as a matter of right, appeal from:
(a)
a final judgment of conviction, whether by verdict or plea;
(b)
an order made after judgment that affects the substantial rights of the defendant;
(c)
an order adjudicating the defendant's competency to proceed further in a pending
prosecution; or
(d)
an order denying bail under
Chapter 20, Bail
.
(2)
In addition to any appeal permitted by Subsection
(1)
, a defendant may seek
discretionary appellate review of any interlocutory order.
(3)
The prosecution may, as a matter of right, appeal from:
(a)
a final judgment of dismissal, including a dismissal of a felony information following
a refusal to bind the defendant over for trial;
(b)
a pretrial order dismissing a charge on the ground that the court's suppression of
evidence has substantially impaired the prosecution's case;
(c)
an order granting a motion to withdraw a plea of guilty or no contest;
(d)
an order arresting judgment or granting a motion for merger;
(e)
an order terminating the prosecution because of a finding of double jeopardy or
denial of a speedy trial;
(f)
an order granting a new trial;
(g)
an order holding a statute or any part of it invalid;
(h)
an order adjudicating the defendant's competency to proceed further in a pending
prosecution;
(i)
an order finding,
pursuant to
Title 77, Chapter 19, Part 2, Competency for Execution
in accordance with Chapter 19, Part 2, Competency for Execution
, that an inmate
sentenced to death is incompetent to be executed;
(j)
an order holding that a defendant is exempt from a sentence of death under Section
77-15a-104
;
(j)
(k)
an order reducing the degree of offense pursuant to Section
76-3-402
;
(k)
(l)
an illegal sentence; or
(l)
(m)
an order dismissing a charge pursuant to Subsection
76-2-309(3)
.
(4)
In addition to any appeal permitted by Subsection
(3)
, the prosecution may seek
discretionary appellate review of any interlocutory order entered before jeopardy
attaches.
Section 9. Section
77-19-6
is amended to read:
77-19-6
. Sentence of death -- Warrant -- Delivery of warrant -- Determination of
execution time.
(1)
(a)
When judgment of death is rendered, a warrant, signed by the judge and attested
by the clerk under the seal of the court, shall be drawn and delivered to the sheriff of
the county where the conviction is had.
(1)
(a)
When a judgment of death is rendered for a defendant, the sentencing court shall:
(i)
immediately transmit a statement of the conviction and sentence and a summary of
the evidence given at trial to the Board of Pardons and Parole; and
(ii)
draw and deliver a warrant, signed by the judge and attested by the clerk under
seal of the court, to the sheriff of the county where the conviction occurred.
(b)
The sheriff shall deliver the warrant and a certified copy of the judgment to the
executive director of the Department of Corrections
,
or the executive director's
designee
,
at the time of delivering the defendant to the custody of the Department of
Corrections.
(2)
(a)
The
Subject to Subsection
(2)(b)
, the
warrant shall state the conviction, the
judgment
sentence
, the method of execution, and the
appointed day the judgment is
to be executed, which may not be fewer than 30 days nor more than 60 days from the
date of issuance of the warrant, and may not be
day on which the sentence is to be
executed.
(b)
The day on which a sentence is to be executed may not be:
(i)
sooner than 30 days after, or later than 60 days after, the day on which the
sentencing court issues the warrant; or
(ii)
a Sunday, Monday, or a legal holiday
, as defined in
under
Section
63G-1-301
.
(3)
The Department of Corrections shall determine the hour, within the appointed day, at
which the
judgment
sentence
is to be executed.
Section 10. Section
77-19-8
is amended to read:
77-19-8
. Sentence of death, when suspended, and by whom.
(1)
Except as stated in Subsection
(2)
, a judge, tribunal, or officer, other than the governor
or the Board of Pardons and Parole, may not stay or suspend the execution of a
judgment of death.
(2)
(a)
A court of competent jurisdiction shall issue a temporary stay of judgment of
death when:
(i)
the judgment is appealed;
(ii)
the judgment is automatically reviewed;
(iii)
the person sentenced to death files a first petition for postconviction relief after
the direct appeal under
Title 78B, Chapter 9, Postconviction Remedies Act
;
(iv)
the person sentenced to death requests counsel under Subsection
78B-9-202(2)(a)
to represent the person in a first action for postconviction relief
under
Title 78B, Chapter 9, Postconviction Remedies Act
; or
(v)
counsel enters an appearance to represent the person sentenced to death in a first
action for postconviction relief under
Title 78B, Chapter 9, Postconviction
Remedies Act
.
(b)
A court may not issue a temporary stay of judgment of death when the person
sentenced to death files a petition for postconviction relief under
Title 78B, Chapter
9, Postconviction Remedies Act
, after a first petition has been denied or dismissed,
unless the court first finds all of the following:
(i)
the claims would not be barred under Section
78B-9-106
;
(ii)
the claims are potentially meritorious; and
(iii)
the petition may not be reasonably disposed of before the execution date.
(c)
(1)
Except as provided in this section, a court, tribunal, or officer, other than the governor
or the Board of Pardons and Parole, may not stay or suspend the execution of a sentence
of death.
(2)
A court may only stay the execution of a sentence of death as described in Utah Rules
of Criminal Procedure, Rule 27.
(i)
(3)
(a)
The executive director of the Department of Corrections
or a designee under
Section
77-19-202
, or the executive director's designee,
may temporarily suspend
the execution
of a sentence of death under Section
77-19-202
if the
person
individual

sentenced to death appears to be incompetent or pregnant.
(ii)
(b)
A temporary suspension under Subsection
(2)(c)(i)
(3)(a)
shall end if the
person
individual
is determined to be:
(A)
(i)
competent;
(B)
(ii)
not pregnant; or
(C)
(iii)
no longer incompetent or pregnant.
(4)
If a stay is vacated or expires before the day on which the sentence is to be executed and
the sentence remains in force, the issuance of a new order of execution and warrant is
not required to execute the sentence.
(3)
(a)
The court must vacate a stay issued pursuant to Subsection
(2)(a)
when the
appeal, automatic review, or action under
Title 78B, Chapter 9, Postconviction
Remedies Act
is concluded.
(b)
A request for
counsel under Section
78B-9-202
does not constitute an application
for postconviction or other collateral review and does not toll the statute of
limitations under Section
78B-9-107
.
Section 11. Section
77-19-9
is amended to read:
77-19-9
. Sentence of death not executed -- Order for execution.
(1)
If for any reason a judgment of death has not been executed and remains in force, the
court where the conviction was had, on application of the prosecuting attorney, shall
order the defendant to be brought before it or, if the defendant is at large, issue a warrant
for the defendant's apprehension.
(2)
When the defendant is brought before the court, it shall inquire into the facts and, if no
legal reason exists against the execution of judgment, the court shall make an order
requiring the executive director of the Department of Corrections or the executive
director's designee to ensure that the judgment is executed on a specified day, which
may not be fewer than 30 nor more than 60 days after the court's order, and may not be a
Sunday, Monday, or a legal holiday, as defined in Section
63G-1-301
. The court shall
also draw and have delivered another warrant under Section
77-19-6
.
(1)
If for any reason a sentence of death has not been executed and remains in force, the
attorney general, or the county or district attorney in the county or district in which the
conviction occurred, may apply for an order of execution from the court in which the
conviction occurred.
(2)
(a)
Within 21 days after the application is filed, the court shall:
(i)
subject to Subsections
(2)(b)
and
(c)
, enter an order requiring the executive
director of the Department of Corrections, or the executive director's designee, to
ensure that the sentence is executed on a specified day if no legal reason exists
against the execution of a sentence for death; and
(ii)
draw and deliver another warrant for the execution of the sentence for death in
accordance with Section
77-19-6
.
(b)
Except as provided in Subsection
(2)(c)
, the specified day described in Subsection
(2)(a)(i)
may not be:
(i)
sooner than 30 days after, or later than 60 days after, the day on which the court
enters the order for execution; or
(ii)
a Sunday, Monday, or legal holiday under Section
63G-1-301
.
(c)
If the defendant seeks review of a finding of competency by the Supreme Court and
the Supreme Court does not set the finding of competency aside, the specified day
described in Subsection
(2)(a)(i)
may not be:
(i)
sooner than 15 days after, or later than 30 days after, the day on which the court
enters the order for execution; and
(ii)
a Sunday, Monday, or legal holiday under Section
63G-1-301
.
(d)
No legal reason exists under Subsection
(2)(a)(i)
if:
(i)
there is no stay in effect for the sentence; and
(ii)
there is no procedural defect in the warrant application process.
(3)
The Department of Corrections shall determine the hour, within the
appointed
specified

day, at which the
judgment
sentence
is to be executed.
Section 12. Section
77-19-10
is amended to read:
77-19-10
. Sentence of death -- Location and procedures for execution.
(1)
The executive director of the Department of Corrections
,
or
a
the executive director's

designee
,
shall ensure that the method of
judgment
a sentence
of death specified in the
warrant or as required under Section
77-18-113
is carried out at a secure correctional
facility operated by the department and at an hour determined by the department on the
date specified in the warrant.
(2)
When the
judgment
sentence
of death is to be carried out by lethal intravenous
injection, the executive director of the department or a designee shall select two or more
persons trained in accordance with accepted medical practices to administer intravenous
injections, who shall each administer a continuous intravenous injection, consisting of
one or more substances of a type and amount that is sufficiently effective to cause death
without a substantial risk of severe pain.
(3)
If the
judgment
sentence
of death is to be carried out by firing squad under Subsection
77-18-113(2)
,
(3)
, or
(4)
the executive director of the department or a designee shall
select a five-person firing squad of peace officers.
(4)
Compensation for persons administering intravenous injections and for members of a
firing squad under Subsection
77-18-113(2)
,
(3)
, or
(4)
shall be in an amount determined
by the director of the Division of Finance.
(5)
Death under this section shall be certified by a physician.
(6)
The department shall adopt and enforce rules governing procedures for the execution of
judgments
sentences
of death.
Section 13. Section
77-19-201
is repealed and reenacted to read:
2. Issues of Pregnancy and Competency for Execution
77-19-201
. Definitions for part.
As used in this part:
(1)
"Incompetent to be executed" means that, due to a mental condition, the individual
sentenced to death lacks a rational understanding that the individual is to be executed as
punishment for the individual's commission of the crime of murder.
(2)
"Sentencing court" means the court in which the sentence of death was rendered.
Section 14. Section
77-19-202
is repealed and reenacted to read:
77-19-202
. Notification of pregnancy or incompetency of inmate sentenced to
death.
(1)
As used in this section, "executive director" means the executive director, or the
executive director's designee, of the Department of Corrections.
(2)
The executive director shall immediately give written notice to the sentencing court, the
prosecuting attorney, the attorney general, and defense counsel for an inmate if:
(a)
the inmate has been sentenced to death;
(b)
all state and federal appeals or review attacking the sentence have been exhausted;
(c)
an active warrant for execution has been signed and an execution date has been set as
described in Sections
77-19-6
and
77-19-9
; and
(d)
the executive director has good reason to believe that:
(i)
the inmate is pregnant; or
(ii)
the inmate's competency to be executed under this chapter should be addressed by
the sentencing court.
(3)
If the sentencing court receives a notice under Subsection
(2)
that there is good reason
for the sentencing court to address an inmate's competency to be executed, the
sentencing court shall order that the mental condition of the inmate be examined under
the provisions of Section
77-19-204
, including holding a hearing at which the state and
the inmate may appear as parties.
Section 15. Section
77-19-202.5
is enacted to read:
77-19-202.5
. Procedures for pregnant inmate sentenced to death.
(1)
If the sentencing court finds that an inmate sentenced to death is pregnant, the
sentencing court shall immediately transmit a certificate of the finding to the Department
of Corrections and the Board of Pardons and Parole.
(2)
When the sentencing court finds that an inmate sentenced to death is no longer
pregnant, the sentencing court shall:
(a)
immediately transmit a certificate of the finding to the Board of Pardons and Parole;
and
(b)
except as provided in Subsection
77-18-8(4)
, draw and deliver another warrant in
accordance with Section
77-19-6
, with a copy of the certificate of the finding.
(3)
(a)
Subject to Subsection
(3)(b)
, the warrant shall state the day on which the sentence
is to be executed.
(b)
The day on which the sentence is executed may not be:
(i)
sooner than 30 days after, or later than 60 days after, the day on which the
sentencing court issues the warrant; or
(ii)
a Sunday, Monday, or legal holiday under Section
63G-1-301
.
Section 16. Section
77-19-203
is amended to read:
77-19-203
. Petition for inquiry as to competency to be executed -- Filing --
Contents.
(1)
If an inmate who has been sentenced to death is or becomes incompetent to be executed,
a petition under Subsection
(2)
may be filed in the district court of the county where the
inmate is confined.
(2)
The petition shall:
(a)
contain a certificate stating that it is filed in good faith and on reasonable grounds to
believe the inmate is incompetent to be executed; and
(b)
contain a specific recital of the facts, observations, and conversations with the inmate
that form the basis for the petition
that give rise to the belief that the inmate may not
be competent to be executed
.
(3)
The petition may be
:

(a)
based upon knowledge or information and belief
and may be
; and
(b)
filed by the inmate alleged to be incompetent, legal counsel for the inmate, or by an
attorney representing the state.
(4)
(a)
A petition for an examination of the inmate that is filed fewer than 21 days before
the day on which the inmate is scheduled to be executed is untimely.
(b)
A court may not consider a petition that is untimely under Subsection
(4)(a)
unless
the petition is accompanied by:
(i)
at least one affidavit from a licensed physician or licensed psychologist who has
examined the inmate and determined that, in the physician's or psychologist's
opinion, the inmate is not competent to proceed; and
(ii)
a statement that establishes good cause for the failure to file a petition for
examination in a timely manner.
(4)
(5)
Before ruling on a petition filed by an inmate or
his
the inmate's
counsel alleging
that the inmate is incompetent to be executed, the court shall give the state and the
Department of Corrections an opportunity to respond to the allegations of incompetency.
(6)
The court shall prioritize any proceeding regarding the examination of the inmate for
competency to be executed so that the proceeding is completed before the scheduled
execution date.
(5)
If a petition is filed after an inmate has previously been found competent under either
this chapter or under Chapter 15, Defendant's Competency to Proceed, no further
hearing on competency may be granted unless the successive petition:
(a)
alleges with specificity a substantial change of circumstances subsequent to the
previous determination of competency; and
(b)
is sufficient to raise a significant question about the inmate's competency to be
executed.
Section 17. Section
77-19-203.5
is enacted to read:
77-19-203.5
. Successive petitions on competency of an inmate sentenced to death.
(1)
If a petition described in Section
77-19-203
is filed after an inmate has previously been
found competent to be executed under this part, the court may not grant a hearing on the
competency to be executed unless the successive petition:
(a)
alleges with specificity a substantial change of circumstances after the previous
finding of competency by the court;
(b)
is sufficient to raise a significant question about the inmate's competency to be
executed; and
(c)
is accompanied by at least one affidavit from a licensed physician or licensed
psychologist who has:
(i)
examined the inmate after the previous finding of competency by the court; and
(ii)
determined, in the physician's or psychologist's opinion, that the inmate is not
competent to be executed due to a substantial change in circumstances.
(2)
An affidavit described in Subsection
(1)(c)
:
(a)
shall contain new and specific facts that support the opinion of the licensed physician
or licensed psychologist; and
(b)
does not meet the requirements of Subsection
(1)(c)
if any of the new facts described
in Subsection
(2)(a)
were known to the defense before the previous finding of the
court that the inmate was competent to be executed.
(3)
In determining whether a successive petition involves a substantial change of
circumstances under Subsection
(1)(a)
and raises a significant question under Subsection
(1)(b)
, the court may consider evidence given by the state in opposition to the petition.
Section 18. Section
77-19-204
is amended to read:
77-19-204
. Order for hearing -- Examinations of inmate -- Scope of examination
and report.
(1)
When a court has good reason to believe an inmate sentenced to death is incompetent
to be executed, it shall stay the execution and shall order the Department of Health and
Human Services to examine the inmate and report to the court concerning the inmate's
mental condition.
(1)
A court shall order the Department of Health and Human Services to immediately
examine an inmate sentenced to death and report to the court concerning the inmate's
mental condition if:
(a)
the court receives notice of a good reason to address the inmate's incompetency to be
executed under Section
77-19-202
;
(b)
a petition is filed with the court that complies with Section
77-19-203
and the court
has good reason to believe the inmate may be incompetent to be executed; or
(c)
a successive petition is filed with the court that complies with Section
77-19-203.5

and the court has a significant question about the inmate's competency to be executed.
(2)
(a)
The inmate subject to examination under Subsection
(1)
shall be examined by at
least two mental health experts who are not involved in the inmate's current treatment.
(b)
The Department of Corrections shall provide information and materials to the
examiners relevant to a determination of the inmate's competency to be executed.
(c)
The court may provide, in the court's order appointing examiners, that a custodian of
mental or physical health records pertaining to the inmate shall provide the mental or
physical health records to the examiners without the need for consent of the
defendant or any further order of the court.
(3)
The inmate shall make himself
or herself
available and fully cooperate in the
examination by the Department of Health and Human Services and any other
independent examiners for the defense or the state.
(4)
The examiners
An examiner
shall in the conduct of
their
the examiner's
examinations
and in
their
the examiner's
reports to the court consider and address, in addition to any
other factors determined to be relevant by the
examiners
examiner
:
(a)
the inmate's awareness of the fact of the inmate's impending execution;
(b)
the inmate's understanding that the inmate is to be executed for the crime of murder;
(c)
the nature of the inmate's mental disorder, if any, and its relationship to the factors
relevant to the inmate's competency; and
(d)
whether psychoactive medication is necessary to maintain or restore the inmate's
competency.
(5)
(a)
The examiners who are
An examiner who is
examining the inmate shall
each
provide an initial
provide a
report to the court and the attorneys for the state and the
inmate within
60 days of the receipt of the court's order
30 days after the day on
which the examiner received the court's order for an examination of the inmate
.
(b)
The report
described in Subsection
(5)(a)
shall inform the court of the examiner's
opinion concerning the competency of the inmate to be executed
, or, in the
alternative, the examiner may inform the court in writing that additional time is
needed to complete the report. If the examiner informs the court that additional time
is needed, the examiner shall have up to an additional 30 days to provide the report to
the court and counsel. The examiner shall provide the report within 90 days from the
receipt of the court's order unless, for good cause shown, the court authorizes an
additional period of time to complete the examination and provide the report
.
(6)
(a)
All interviews with the inmate conducted by the examiners shall be videotaped,
unless otherwise ordered by the court for good cause shown.
(b)
The Department of Corrections shall provide the videotaping equipment and
facilitate the videotaping of the interviews.
(b)
(c)
Immediately following the videotaping, the videotape shall be provided to the
attorney for the state, who shall deliver
it
the videotape
as soon as practicable to the
judge
court
in whose court the competency determination is pending.
(c)
(d)
The court shall grant counsel for the state and for the inmate, and
examiners
who are
an examiner who is
examining the inmate under this part access to view the
videotape at the court building where the court is located that is conducting the
competency determination under this part.
(7)
Any written report submitted by an examiner shall:
(a)
identify the specific matters referred for evaluation;
(b)
describe the procedures, techniques, and tests used in the examination and the
purpose or purposes for each;
(c)
state the examiner's clinical observations, findings, and opinions on each issue
referred for examination by the court, and indicate specifically those issues, if any, on
which the examiner could not give an opinion; and
(d)
identify the sources of information used by the examiner and present the basis for the
examiner's clinical findings and opinions.
(8)
(a)
(i)
When
the reports
all reports from examiners
are received, the court shall set
a date for a competency hearing
, which shall be held within not less than five and
not more than 15 days, unless the court extends the time for good cause.
.
(ii)
The competency hearing shall be held no sooner than five days after, or later than
15 days after, the day on which the reports are received by the court.
(b)
(i)
Any examiner directed by the Department of Health and Human Services to
conduct the examination may be subpoenaed to provide testimony at the hearing.
(ii)
If the examiners are in conflict as to the competency of the inmate, all of them
should be called to testify at the hearing if they are reasonably available.
(c)
(i)
The court may call any examiner to testify at the hearing who is not called by
the parties.
(ii)
An examiner called by the court may be cross-examined by counsel for the
parties.
(9)
(a)
(i)
An inmate shall be presumed competent to be executed unless the court, by a
preponderance of the evidence, finds the inmate incompetent to be executed.
(ii)
The burden of proof is upon the proponent of incompetency at the hearing.
(b)
An adjudication of incompetency to be executed does not operate as an adjudication
of the inmate's incompetency to give informed consent for medical treatment or for
any other purpose
, unless specifically set forth in the court order
.
(10)
(a)
If the court finds the inmate incompetent to be executed,
its
the court's
order
shall contain findings addressing each of the factors in Subsections
(4)(a)
through
(d)
.
(b)
The order finding the inmate incompetent to be executed shall be
:

(i)
delivered to the Department of Health and Human Services
, and shall be
; and
(ii)
accompanied by:
(i)
(A)
copies of the reports of the examiners filed with the court pursuant to the
order of examination, if not provided previously;
(ii)
(B)
copies of any of the psychiatric, psychological, or social work reports
submitted to the court relative to the mental condition of the inmate; and
(iii)
(C)
any other documents made available to the court by either the defense or
the state, pertaining to the inmate's current or past mental condition.
(c)
A copy of the order finding the inmate incompetent to be executed shall be delivered
to the Department of Corrections.
Section 19. Section
77-19-204.5
is enacted to read:
77-19-204.5
. Procedures on finding of competency to be executed.
(1)
If an inmate is found competent to be executed at any time during a proceeding under
this chapter, the court shall immediately transmit a certificate of the findings to the
Board of Pardons and Parole and the Department of Corrections.
(2)
Upon a finding that the inmate is competent to be executed:
(a)
any stay imposed by the court is automatically lifted as described in Utah Rules of
Criminal Procedure, Rule 27; and
(b)
except as provided in Subsection
77-19-8(4)
, the court shall draw and deliver another
warrant of execution, with a copy of the certificate of findings, in accordance with
Section
77-19-6
.
Section 20. Section
77-19-205
is amended to read:
77-19-205
. Procedures on finding of incompetency to be executed -- Subsequent
hearings -- Notice to attorneys.
(1)
(a)
(i)
If after the hearing under Section
77-19-204
the inmate is found to be
incompetent to be executed, the court shall continue the stay of execution and the
inmate shall receive appropriate mental health treatment.
(a)
(i)
Upon an inmate being found incompetent to be executed after a hearing
described in Section
77-19-204
:
(A)
the court shall immediately transmit a certificate of the findings to the Board
of Pardons and Parole and the Department of Corrections;
(B)
if a stay has not been issued by the court, the court shall issue a stay as
described in Utah Rules of Criminal Procedure, Rule 27; and
(C)
the inmate shall receive appropriate mental health treatment.
(ii)
Appropriate mental health treatment under Subsection
(1)(a)(i)
(1)(b)(i)(B)
does
not include the forcible administration of psychoactive medication for the sole
purpose of restoring the inmate's competency to be executed.
(b)
The court shall order the executive director of the Department of Health and Human
Services to provide periodic assessments to the court regarding the inmate's
competency to be executed.
(c)
The inmate shall be held in secure confinement, either at the prison or the State
Hospital, as agreed upon by the executive director of the Department of Corrections
and the executive director of the Department of Health and Human Services.
(d)
If the inmate remains at the prison, the Department of Health and Human Services
shall consult with the Department of Corrections regarding the inmate's mental health
treatment.
(2)
(a)
The examiner or examiners
An examiner
designated by the executive director of
the Department of Health and Human Services to assess the inmate's progress toward
competency may not be involved in the routine treatment of the inmate.
(b)
The examiner or examiners
An examiner
shall each provide a full report to the
court and counsel for the state and the inmate within 90 days
of receipt of the court's
order
after the day on which the examiner receives the court's order
.
(c)
If any examiner is unable to complete the assessment within 90 days, that examiner
shall provide to the court
and
,

the
counsel for the state
,
and the inmate a summary
progress report
which
that
informs the court that additional time is necessary to
complete the assessment, in which case the examiner has up to an additional 90 days
to provide the full report, unless the court
enlarges
extends
the time for good cause.
(d)
The full report shall assess:
(i)
the facility's or program's capacity to provide appropriate treatment for the inmate;
(ii)
the nature of treatments provided to the inmate;
(iii)
what progress toward restoration of competency has been made;
(iv)
the inmate's current level of mental disorder and need for treatment, if any; and
(v)
the likelihood of restoration of competency and the amount of time estimated to
achieve it.
(3)
The court on its
Upon the court's
own motion or upon motion by either party
, the court

may order the Department of Health and Human Services to appoint additional mental
health examiners to examine the inmate and advise the court on the inmate's current
mental status and progress toward competency restoration.
(4)
(a)
Upon receipt of the full report, the court shall hold a hearing to determine the
inmate's current status.
(b)
At the hearing, the burden of proving that the inmate is competent is on the
proponent of competency.
(b)
(c)
Following the hearing, the court shall determine by a preponderance of evidence
whether the inmate is competent to be executed.
(5)
(a)
If the court determines that the inmate is competent to be executed,
it
the court

shall enter findings and shall proceed under
Subsection
77-19-202(2)(c)
Section
77-19-204.5
.
(b)
(i)
If the court determines the inmate is still incompetent to be executed
,
:

(A)
the inmate shall continue to receive appropriate mental health treatment
, and
;
and
(B)
the court shall hold hearings no less frequently than at 18-month intervals for
the purpose of determining the
defendant's
inmate's
competency to be
executed.
(ii)
Continued appropriate mental health treatment under Subsection
(1)(a)(i)
(1)(b)

does not include the forcible administration of psychoactive medication for the
sole purpose of restoring the inmate's competency to be executed.
(6)
(a)
If
The court shall be notified if,
at any time
,
the clinical director of the Utah
State Hospital or the primary treating mental health professional determines that the
inmate has been restored to competency
, he shall notify the court
.
(b)
The court shall conduct a hearing regarding the inmate's competency to be executed
within 30 working days of the receipt of the notification under Subsection
(6)(a)
,
unless the court extends the time for good cause.
(c)
The court may order a hearing or rehearing at any time on
its
the court's
own motion.
(7)
Notice of a hearing on competency to be executed shall be given to
:

(a)
counsel for the state and for the inmate
, as well as to
; and
(b)
the office of the
prosecutor
prosecuting attorney
who prosecuted the inmate on the
original capital charge.
Section 21. Section
78A-3-102
is amended to read:
78A-3-102
. Jurisdiction of Supreme Court.
(1)
The Supreme Court has original jurisdiction to answer questions of state law certified
by a court of the United States.
(2)
The Supreme Court has original jurisdiction to issue all extraordinary writs and
authority to issue all writs and process necessary to carry into effect the Supreme Court's
orders, judgments, and decrees or in aid of the jurisdiction of the Supreme Court.
(3)
(a)
The Supreme Court has exclusive and original appellate jurisdiction, including
exclusive and original appellate jurisdiction of an interlocutory appeal, over:
(i)
a judgment of the Court of Appeals;
(ii)
a case certified to the Supreme Court by the Court of Appeals before final
judgment by the Court of Appeals;
(iii)
the discipline of a lawyer;
(iv)
a final order of the Judicial Conduct Commission;
(v)
an interlocutory appeal from a court of record involving a capital felony;
(vi)
(v)
except as provided in Subsection
(5)
,
an appeal from the district court
involving a conviction or charge of a capital felony;
(vii)
(vi)
an appeal from the district court of an order, judgment, or decree ruling on
a legislative subpoena;
(viii)
(vii)
an appeal of an injunctive order as described in Section
78B-5-1002
;
(ix)
(viii)
a judgment, or an interlocutory appeal of an order, of a district court
involving:
(A)
an election or voting contest; or
(B)
the establishment of boundaries of political districts for purposes of an
election; and
(x)
(ix)
the retention or removal of a public officer.
(b)
The Supreme Court may not transfer any matter described in Subsection
(3)(a)
to the
Court of Appeals.
(c)
In a case involving an election or voting contest or the establishment of boundaries
of political districts for purposes of an election, a judgment is appealable to the
Supreme Court even if:
(i)
a party files a motion or claim for attorney fees under Rule 73 of the Utah Rules of
Civil Procedure in the district court; and
(ii)
the district court has not entered a dispositive order for that motion or claim.
(d)
The Supreme Court has exclusive and original appellate jurisdiction to conduct an
automatic review of a conviction or sentence for a capital felony where the sentence
is death in accordance with Subsection
76-3-207(11)
.
(4)
(a)
In addition to Subsection
(3)(a)
, the Supreme Court has original appellate
jurisdiction, including original appellate jurisdiction of an interlocutory appeal, over:
(i)
a final agency action, as described in Section
63G-4-403
, in a formal adjudicative
proceeding originating from:
(A)
the Public Service Commission;
(B)
the State Tax Commission;
(C)
the School and Institutional Trust Lands Board of Trustees;
(D)
the Board of Oil, Gas, and Mining;
(E)
the state engineer; or
(F)
the executive director of the Department of Natural Resources reviewing an
action of the Division of Forestry, Fire, and State Lands;
(ii)
a final order or decree of the district court review of an informal adjudicative
proceeding of an agency described in Subsection
(4)(a)(i)
;
(iii)
a final judgment or decree of a court of record holding a statute of the United
States or this state is unconstitutional on its face under the Constitution of the
United States or the Utah Constitution;
(iv)
an interlocutory appeal from a court of record involving a first degree felony;
(v)
an appeal from a district court involving a conviction or charge of a first degree
felony; and
(vi)
an order, judgment, or decree of a court of record over which the Court of
Appeals does not have appellate jurisdiction.
(b)
The Supreme Court may transfer any matter described in Subsection
(4)(a)
to the
Court of Appeals.
(5)
(a)
The Supreme Court may not exercise subject matter jurisdiction over a claim for
ineffective assistance of counsel in an appeal from, or upon an automatic review of, a
conviction or sentence for a capital felony where the sentence is death.
(b)
Notwithstanding Subsection
(5)(a)
, the Supreme Court has subject matter jurisdiction
over a claim for ineffective assistance of counsel in an appeal involving a petition for
postconviction relief from a conviction or sentence for a capital felony where the
sentence is death.
(5)
(6)
(a)
The Supreme Court has sole discretion in granting or denying a petition for
writ of certiorari for the review of a Court of Appeals adjudication.
(b)
Notwithstanding Subsection
(5)(a)
(6)(a)
, the Supreme Court shall review a case
certified to the Supreme Court by the Court of Appeals under Subsection
(3)(a)(ii)
.
(6)
(7)
The Supreme Court shall comply with the requirements of
Title 63G, Chapter 4,
Administrative Procedures Act
, in the Supreme Court's review of an agency adjudicative
proceeding.
Section 22. Section
78A-5-102
is amended to read:
78A-5-102
. Jurisdiction of the district court -- Appeals.
(1)
Except as otherwise provided by the Utah Constitution or by statute, the district court
has original jurisdiction in all matters civil and criminal.
(2)
A district court judge may:
(a)
issue all extraordinary writs and other writs necessary to carry into effect the district
court judge's orders, judgments, and decrees; and
(b)
preside over an action for which the Business and Chancery Court has jurisdiction if:
(i)
the district court judge is designated by the presiding officer of the Judicial
Council to preside over an action in the Business and Chancery Court as described
in Section
78A-1-103.5
; and
(ii)
a Business and Chancery Court judge is unable to preside over the action due to
recusal or disqualification.
(3)
The district court has jurisdiction:
(a)
over matters of lawyer discipline consistent with the rules of the Supreme Court;
(b)
over all matters properly filed in the circuit court prior to July 1, 1996;
(c)
to enforce foreign protective orders as described in Subsection
78B-7-303(8)
;
(d)
to enjoin a violation of Title 58, Chapter 37, Utah Controlled Substances Act;
(e)
over a petition seeking to terminate parental rights as described in Section
81-13-205
;
(f)
except as provided in Subsection
78A-6-103(2)(a)(xiv)
or
(xv)
, over an adoption
proceeding; and
(g)
to issue a declaratory judgment as described in Title 78B, Chapter 6, Part 4,
Declaratory Judgments.
(4)
The district court has appellate jurisdiction over judgments and orders of the justice
court as outlined in Section
78A-7-118
and small claims appeals filed in accordance
with Section
78A-8-106
.
(5)
The district court has jurisdiction to review:
(a)
a municipal administrative proceeding as described in Section
10-3-703.7
;
(b)
a decision resulting from a formal adjudicative proceeding by the State Tax
Commission as described in Section
59-1-601
;
(c)
except as provided in Section
63G-4-402
, a final agency action resulting from an
informal adjudicative proceeding as described in Title 63G, Chapter 4,
Administrative Procedures Act; and
(d)
by trial de novo, a final order of the Department of Transportation resulting from
formal and informal adjudicative proceedings under Title 72, Chapter 7, Part 2,
Junkyard Control Act.
(6)
The district court has original and exclusive jurisdiction over an action brought under
Title 63G, Chapter 7, Governmental Immunity Act of Utah.
(7)
The district court has exclusive jurisdiction to modify a juvenile court's permanent
custody and guardianship order as described in Subsection
78A-6-357(3)(e)(ii)
.
(8)
Notwithstanding Section
78A-7-106
, the district court has original jurisdiction over a
class B misdemeanor, a class C misdemeanor, an infraction, or a violation of an
ordinance for which a justice court has original jurisdiction under Section
78A-7-106
if:
(a)
there is no justice court with territorial jurisdiction;
(b)
the offense occurred within the boundaries of the municipality in which the district
courthouse is located and that municipality has not formed, or has formed and
dissolved, a justice court; or
(c)
the offense is included in an indictment or information covering a single criminal
episode alleging the commission of a felony or a class A misdemeanor by an
individual who is 18 years old or older.
(9)
If a district court has jurisdiction in accordance with Subsection
(4)
, (8)(a), or (8)(b), the
district court has jurisdiction over an offense listed in Subsection
78A-7-106(2)
even if
the offense is committed by an individual who is 16 or 17 years old.
(10)
The district court has subject matter jurisdiction over an action under Title 78B,
Chapter 7, Part 2, Child Protective Orders, if the juvenile court transfers the action to the
district court.
(11)
(a)
The district court has subject matter jurisdiction over a criminal action that the
justice court transfers to the district court.
(b)
Notwithstanding Subsection
78A-7-106(1)
, the district court has original jurisdiction
over any refiled case of a criminal action transferred to the district court if the district
court dismissed the transferred case without prejudice.
(12)
The district court has no subject matter jurisdiction over a claim for ineffective
assistance of counsel in a criminal case involving a charge of a capital felony.
(12)
(13)
If the juvenile court has concurrent jurisdiction under Subsection
78A-6-104(1)(a)(i)
over a parentage action filed in the district court, the district court
may transfer jurisdiction over the parentage action to the juvenile court.
(13)
(14)
The Supreme Court and Court of Appeals have jurisdiction over an appeal from
a final order, judgment, and decree of the district court as described in Sections
78A-3-102
and
78A-4-103
.
Section 23. Section
78B-9-202
is amended to read:
78B-9-202
. Appointment and payment of counsel in a death penalty case.
(1)
A person who has been sentenced to death and whose conviction and sentence has been
affirmed on appeal shall be advised in open court, on the record, in a hearing scheduled
no less than 30 days prior to the signing of the death warrant, of the provisions of this
chapter allowing challenges to the conviction and death sentence and the appointment of
counsel for indigent petitioners.
(2)
(a)
If a petitioner requests the court to appoint counsel, the court shall determine
whether the petitioner is indigent and make findings on the record regarding the
petitioner's indigency. If the court finds that the petitioner is indigent, it shall, subject
to the provisions of Subsection
(5)
, promptly appoint counsel who is qualified to
represent petitioners in postconviction death penalty cases as required by Rule 8 of
the Utah Rules of Criminal Procedure. Counsel who represented the petitioner at
trial or on the direct appeal may not be appointed to represent the petitioner under
this section.
(b)
A petitioner who wishes to reject the offer of counsel shall be advised on the record
by the court of the consequences of the rejection before the court may accept the
rejection.
(1)
(a)
Within 30 days after the day on which the Supreme Court remits a case after
affirming an individual's conviction and sentence of death, the sentencing court shall:
(i)
advise the individual, in open court and on the record, of the provisions of this
chapter allowing challenges to the individual's conviction and sentence; and
(ii)
appoint counsel to represent the individual on a petition for postconviction relief
in accordance with this section and Rule 8 of the Utah Rules of Criminal
Procedure.
(b)
Subject to Subsection
(1)(c)
, Subsection
(1)(a)(ii)
does not prevent an individual
from obtaining private counsel or waiving the appointment of counsel.
(c)
If an individual wishes to reject the appointment of counsel under Subsection
(1)(a)(ii)
, the sentencing court shall make a finding regarding the individual's
understanding of the legal consequences of proceeding without the appointment of
postconviction counsel.
(d)
The sentencing court may not appoint counsel who represented the individual at trial,
or on the direct appeal, under Subsection
(1)(a)(ii)
.
(e)
For purposes of Subsection
(1)(a)(ii)
, the Supreme Court shall maintain a list of
postconviction counsel qualified to represent an individual who has been sentenced to
death on a petition for postconviction relief.
(2)
For a second or successive petition for postconviction relief, a court may not appoint
postconviction counsel for an individual sentenced to death at the expense of the public,
except for a claim:
(a)
based on newly discovered evidence as defined in Subsection
78B-9-104(1)(e)(i)
; or
(b)
based on Subsection
78B-9-104(1)(g)
that could not have been raised in any
previously filed post trial motion or postconviction proceeding.
(3)
(a)
Attorney fees and litigation expenses incurred in providing the representation
provided for in this section and that the court has determined are reasonable shall be
paid from state funds by the Division of Finance according to rules established
pursuant to
Title 63G, Chapter 3, Utah Administrative Rulemaking Act
.
(a)
(b)
In determining whether the requested funds are reasonable, the court should
consider:
(i)
the extent to which the petitioner requests funds to investigate and develop
evidence and legal arguments that duplicate the evidence presented and arguments
raised in the criminal proceeding; and
(ii)
whether the petitioner has established that the requested funds are necessary to
develop evidence and legal arguments that are reasonably likely to support
postconviction relief.
(b)
(c)
(i)
The court may authorize payment of attorney fees at a rate of
$125
$250
per
hour up to a maximum of
$60,000
$120,000
.
(ii)
The court may exceed the maximum
amount described in Subsection
(3)(c)(i)

only upon a showing of good cause as established in Subsections
(3)(e)
and (f)
(3)(f)
and (g)
.
(c)
(d)
(i)
The court may authorize litigation expenses up to a maximum of
$20,000
$40,000
.
(ii)
Litigation expenses under Subsection
(3)(d)(i)
may include payment for an
investigator, a mitigation specialist, a mental health and forensic science expert,
and support personnel.
(iii)
The court may exceed the maximum
amount described in Subsection
(3)(d)(i)

only upon a showing of good cause as established in Subsections
(3)(e)
and (f)
(3)(f)
and (g)
.
(d)
(e)
(i)
The court may authorize the petitioner to apply ex parte for the funds permitted
in Subsections
(3)(b)
and (c)
(3)(c)
and (d)
upon a motion to proceed ex parte and
if the petitioner establishes the need for confidentiality.
(ii)
The motion to proceed ex parte must be served on counsel representing the state
,
and the
.
(iii)
The
court may not grant the motion without giving the state an opportunity to
respond.
(e)
(f)
In determining whether good cause exists to exceed the maximum sums
established in Subsections
(3)(b)
and (c)
(3)(c)
and (d)
, the court shall consider:
(i)
the extent to which the work done to date and the further work identified by the
petitioner duplicates work and investigation performed during the criminal case
under review; and
(ii)
whether the petitioner has established that the work done to date and the further
work identified is reasonably likely to develop evidence or legal arguments that
will support postconviction relief.
(f)
(g)
The court may permit payment in excess of the maximum amounts established in
Subsections
(3)(b)
and (c)
(3)(c)
and (d)
only on the petitioner's motion, provided
that:
(i)
if the court has granted a motion to file ex parte applications under Subsection
(3)(d)
(3)(e)
, the petitioner
shall serve
serves
the motion to exceed the maximum
amounts on an assistant attorney general employed in a division other than the one
in which the attorney is employed who represents the state in the postconviction
case;
(ii)
if the court has not granted a motion to file ex parte applications,
then the
petitioner must serve
the petitioner serves
the attorney representing the state in
the postconviction matter with the motion to exceed the maximum funds;
(ii)
(iii)
if the motion proceeds under Subsection
(3)(f)(i)
(3)(g)(i)
, the designated
assistant attorney general
may
does
not disclose to the attorney representing the
state in the postconviction matter any material the petitioner provides in support of
the motion except upon a determination by the court that the material is not
protected by or that the petitioner has waived the attorney client privilege or work
product doctrine; and
(iii)
(iv)
the court gives the state an opportunity to respond to the request for funds
in excess of the maximum amounts provided in Subsections
(3)(b)
and (c)
(3)(c)

and (d)
.
(4)
(a)
Nothing in this chapter shall be construed as creating the right to the effective
assistance of postconviction counsel
, and relief
.
(b)
Relief
may not be granted on any claim that postconviction counsel was ineffective.
(5)
The appointment of counsel under this section does not constitute an application for
postconviction or other collateral review and does not toll the statute of limitations under
Section
78B-9-107
.
(5)
If within 60 days of the request for counsel the court cannot find counsel willing to
accept the appointment, the court shall notify the petitioner and the state's counsel in
writing. In that event, the petitioner may elect to proceed pro se by serving written
notice of that election on the court and state's counsel within 30 days of the court's
notice that no counsel could be found. If within 30 days of its notice to the petitioner the
court receives no notice that the petitioner elects to proceed pro se, the court shall
dismiss any pending postconviction actions and vacate any execution stays, and the state
may initiate proceedings under Section
77-19-9
to issue an execution warrant.
(6)
Subject to Subsection
(2)(a)
the court shall appoint counsel to represent the petitioner
for the first petition filed after the direct appeal. For all other petitions, counsel may not
be appointed at public expense for a petitioner, except to raise claims:
(a)
based on newly discovered evidence as defined in Subsection
78B-9-104(1)(e)(i)
; or
(b)
based on Subsection 78B-9-104(1)(g) that could not have been raised in any
previously filed post trial motion or postconviction proceeding.
Section 24.
Repealer.
Court may raise issue of intellectual disability at any time.
Capital cases.
Judgment of death -- Statement to Board of Pardons and Parole.
Section 25.
Effective Date.
This bill takes effect on
May 6, 2026
.
3-12-26 11:48 AM