Section 76-3-203.5 - Habitual violent offender - Definition - Procedure - Penalty(1) As used in this section:(a) "Felony" means any violation of a criminal statute of the state, any other state, the United States, or any district, possession, or territory of the United States for which the maximum punishment the offender may be subjected to exceeds one year in prison.(b) "Habitual violent offender" means a person convicted within the state of any violent felony and who on at least two previous occasions has been convicted of a violent felony and committed to either prison in Utah or an equivalent correctional institution of another state or of the United States either at initial sentencing or after revocation of probation.(c) "Violent felony" means:(i) any of the following offenses, or any attempt, solicitation, or conspiracy to commit any of the following offenses punishable as a felony: (A) arson as described in Section 76-6-102;(B) causing a catastrophe as described in Subsection 76-6-102;(C) criminal mischief as described in Section 76-6-106;(D) aggravated arson as described in Section 76-6-103;(E) assault by prisoner as described in Section 76-5-102.5;(F) disarming a police officer as described in Section 76-5-102.8;(G) aggravated assault as described in Section 76-5-103;(H) aggravated assault by prisoner as described in Section 76-5-103.5;(I) mayhem as described in Section 76-5-105;(J) stalking as described in Subsection 76-5-106.5(2);(K) threat of terrorism as described in Section 76-5-107.3;(L) aggravated child abuse as described in Subsection 76-5-109.2(3)(a) or (b);(M) commission of domestic violence in the presence of a child as described in Section 76-5-114;(N) abuse or neglect of a child with a disability as described in Section 76-5-110;(O) abuse or exploitation of a vulnerable adult as described in Section 76-5-111, 76-5-111.2, 76-5-111.3, or 76-5-111.4; (P) endangerment of a child or vulnerable adult as described in Section 76-5-112.5;(Q) an offense described in Chapter 5, Part 2, Criminal Homicide;(R) kidnapping as described in Section 76-5-301;(S) child kidnapping as described in Section 76-5-301.1;(T) aggravated kidnapping as described in Section 76-5-302 ;(U) rape as described in Section 76-5-402;(V) rape of a child as described in Section 76-5-402.1;(W) object rape as described in Section 76-5-402.2;(X) object rape of a child as described in Section 76-5-402.3;(Y) forcible sodomy as described in Section 76-5-403;(Z) sodomy on a child as described in Section 76-5-403.1;(AA) forcible sexual abuse as described in Section 76-5-404;(BB) sexual abuse of a child as described in Section 76-5-404.1 ;(CC) aggravated sexual abuse of a child as described in Section 76-5-404.3;(DD) aggravated sexual assault as described in Section 76-5-405;(EE) sexual exploitation of a minor as described in Section 76-5b-201;(FF) aggravated sexual exploitation of a minor as described in Section 76-5b-201.1;(GG) sexual exploitation of a vulnerable adult as described in Section 76-5b-202;(HH) burglary as described in Subsection 76-6-202(3)(b) ;(II) aggravated burglary as described in Section 76-6-203;(JJ) robbery as described in Section 76-6-301 ;(KK) aggravated robbery as described in Section 76-6-302;(LL) theft by extortion as described in Subsection 76-6-406(1)(a)(i) or (1)(a)(ii);(MM) tampering with a witness as described in Section 76-8-508;(NN) retaliation against a witness, victim, or informant as described in Section 76-8-508.3;(OO) tampering or retaliating against a juror as described in Subsection 76-8-508.5(2)(a)(iii);(PP) extortion to dismiss a criminal proceeding as described in Subsection 76-6-406 (1)(a)(i),(ii),or(ix);(QQ) possession, use, or removal of explosive, chemical, or incendiary devices as described in Subsections 76-10-306(3) through (6);(RR) unlawful delivery of explosive, chemical, or incendiary devices as described in Section 76-10-307;(SS) purchase or possession of a dangerous weapon or handgun by a restricted person as described in Section 76-10-503; (TT) aggravated exploitation of prostitution as described in Subsection 76-10-1306(1)(a);(UU) bus hijacking as described in Section 76-10-1504; and(VV) discharging firearms and hurling missiles as described in Section 76-10-1505; or(ii) any felony violation of a criminal statute of any other state, the United States, or any district, possession, or territory of the United States which would constitute a violent felony as defined in this Subsection (1) if committed in this state.(2) If a person is convicted in this state of a violent felony by plea or by verdict and the trier of fact determines beyond a reasonable doubt that the person is a habitual violent offender under this section, the penalty for a: (a) third degree felony is as if the conviction were for a first degree felony;(b) second degree felony is as if the conviction were for a first degree felony; or(c) first degree felony remains the penalty for a first degree penalty except: (i) the convicted person is not eligible for probation; and(ii) the Board of Pardons and Parole shall consider that the convicted person is a habitual violent offender as an aggravating factor in determining the length of incarceration.(3)(a) The prosecuting attorney, or grand jury if an indictment is returned, shall provide notice in the information or indictment that the defendant is subject to punishment as a habitual violent offender under this section. Notice shall include the case number, court, and date of conviction or commitment of any case relied upon by the prosecution.(b)(i) The defendant shall serve notice in writing upon the prosecutor if the defendant intends to deny that: (A) the defendant is the person who was convicted or committed;(B) the defendant was represented by counsel or had waived counsel; or(C) the defendant's plea was understandingly or voluntarily entered.(ii) The notice of denial shall be served not later than five days prior to trial and shall state in detail the defendant's contention regarding the previous conviction and commitment.(4)(a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to a jury, the jury may not be told, until after it returns its verdict on the underlying felony charge, of the: (i) defendant's previous convictions for violent felonies, except as otherwise provided in the Utah Rules of Evidence; or(ii) allegation against the defendant of being a habitual violent offender.(b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of being an habitual violent offender by the same jury, if practicable, unless the defendant waives the jury, in which case the allegation shall be tried immediately to the court.(c)(i) Before or at the time of sentencing the trier of fact shall determine if this section applies.(ii) The trier of fact shall consider any evidence presented at trial and the prosecution and the defendant shall be afforded an opportunity to present any necessary additional evidence.(iii) Before sentencing under this section, the trier of fact shall determine whether this section is applicable beyond a reasonable doubt.(d) If any previous conviction and commitment is based upon a plea of guilty or no contest, there is a rebuttable presumption that the conviction and commitment were regular and lawful in all respects if the conviction and commitment occurred after January 1, 1970. If the conviction and commitment occurred prior to January 1, 1970, the burden is on the prosecution to establish by a preponderance of the evidence that the defendant was then represented by counsel or had lawfully waived the right to have counsel present, and that the defendant's plea was understandingly and voluntarily entered.(e) If the trier of fact finds this section applicable, the court shall enter that specific finding on the record and shall indicate in the order of judgment and commitment that the defendant has been found by the trier of fact to be a habitual violent offender and is sentenced under this section.(5)(a) The sentencing enhancement provisions of Section 76-3-407 supersede the provisions of this section.(b) Notwithstanding Subsection (5)(a), the "violent felony" offense defined in Subsection (1)(c) shall include any felony sexual offense violation of Chapter 5, Part 4, Sexual Offenses, to determine if the convicted person is a habitual violent offender.(6) The sentencing enhancement described in this section does not apply if: (a) the offense for which the person is being sentenced is: (i) a grievous sexual offense;(ii) child kidnapping, Section 76-5-301.1;(iii) aggravated kidnapping, Section 76-5-302; or(iv) forcible sexual abuse, Section 76-5-404; and(b) applying the sentencing enhancement provided for in this section would result in a lower maximum penalty than the penalty provided for under the section that describes the offense for which the person is being sentenced.Amended by Chapter TBD, 2024 General Session ,§ 17, eff. 5/1/2024.Amended by Chapter TBD, 2024 General Session ,§ 1, eff. 5/1/2024.Amended by Chapter 111, 2023 General Session ,§ 16, eff. 5/3/2023.Amended by Chapter 185, 2022 General Session ,§ 8, eff. 5/4/2022.Amended by Chapter 181, 2022 General Session ,§ 11, eff. 5/4/2022.Amended by Chapter 418, 2022 General Session ,§ 1, eff. 5/4/2022.Amended by Chapter 278, 2013 General Session ,§ 58, eff. 5/14/2013.Amended by Chapter 320, 2011 General Session
Amended by Chapter 366, 2011 General Session