Print Version
Previous PageFile uploaded: 10/30/2015

Rule 27. Stays of sentence pending appeal from courts of record.

 

(a) Staying sentence terms other than incarceration.

 

(a)(1) A sentence of death is stayed if an appeal or apetition for other relief is pending. The defendant shall remain in the custodyof the warden of the Utah State Prison until the appeal or petition for otherrelief is resolved.

 

(a)(2) When an appeal is taken by the prosecution, a stay ofany order of judgment in favor of the defendant may be granted by the courtupon good cause pending disposition of the appeal.

 

(a)(3) Upon the filing of a notice of appeal, and motion ofthe defendant, the court may stay any sentenced amount of fines, conditions ofprobation (other than incarceration) pending disposition of the appeal, uponnotice to the prosecution and a hearing if requested by the prosecution.

 

(a)(4) A party dissatisfied with the trial court?s ruling onsuch a motion may petition for relief in the court in which the appeal ispending.

 

(b) Staying sentence terms of incarceration. A defendantsentenced, or required as a term of probation, to serve a period ofincarceration in jail or in prison, shall be detained, unless released by thecourt in conformity with this rule.

 

(b)(1) In general. Before a court may release a defendantafter the filing of a notice of appeal, the court must:

 

(b)(1)(A) issue a certificate ofprobable cause; and

 

(b)(1)(B) determine by clear andconvincing evidence that the defendant:

 

(b)(1)(B)(i) is not likely to flee;and

 

(b)(1)(B)(ii) does not pose adanger to the safety of any other person or the community if released under anyconditions as set forth in subsection (c).

 

(b)(2) A defendant shall file a written motion in the trial courtrequesting a stay of the sentence term of incarceration.

 

(b)(2)(A) That motion shall be accompanied by a copy of thefiled notice of appeal; a written application for a certificate of probablecause; and a memorandum of law. The memorandum shall identify the issues to bepresented on appeal and support the defendant's position that those issuesraise a substantial question of law or fact reasonably likely to result inreversal, an order for a new trial or a sentence that does not include a termof incarceration in jail or prison. The memorandum shall also address why clearand convincing evidence exists that the defendant is not a flight risk and thatthe defendant does not pose a danger to any other person or the community.

 

(b)(2)(B) A copy of the motion, the application for acertificate of probable cause and supporting memorandum shall be served on theprosecuting attorney. An opposing memorandum may be filed within 14 days afterreceipt of the application, or within a shorter time as the court deemsnecessary. A hearing on the application shall be held within 14 days after thecourt receives the opposing memorandum, or if no opposing memorandum is filed,within 14 days after the application is filed with the court.

 

(b)(3) The court shall issue a certificate of probable causeif it finds that the appeal:

 

(b)(3)(A) is not being taken forthe purpose of delay; and

 

(b)(3)(B) raises substantial issuesof law or fact reasonably likely to result in reversal, an order for a newtrial or a sentence that does not include a term of incarceration in jail orprison.

 

(b)(4) If the court issues a certificate of probable causeit shall order the defendant released if it finds that clear and convincingevidence exists to demonstrate that the defendant is not a flight risk and thatthe defendant does not pose a danger to any other person or the community ifreleased under any of the conditions set forth in subsection (c).

 

(b)(5) The court ordering release pending appeal undersubsection (b)(4) shall order release on the least restrictive condition orcombination of conditions set forth in subsection (c) that the court determineswill reasonably assure the appearance of the person as required and the safetyof persons and property in the community.

 

(b)(6) Review of trial court?s order. A party dissatisfiedwith the relief granted or denied under this subsection may petition the courtin which the appeal is pending for relief.

 

(b)(6)(A) If the petition is filed by the defendant, a copyof the petition, the affidavit and papers filed in support of the originalmotion shall be served on the Utah Attorney General if the case involves anyfelony charge, and on the prosecuting attorney if thecase involves only misdemeanor charges.

 

(b)(6)(B) If the petition is filed by the prosecution, acopy of the petition and supporting papers shall be served on defense counsel, or the defendant if the defendant is notrepresented by counsel.

 

(c) If the court determines that the defendant may bereleased pending appeal, it may release the defendant on the least restrictivecondition or combination of conditions that the court determines willreasonably assure the appearance of the person as required and the safety ofpersons and property in the community, which conditions may include, withoutlimitation, that the defendant:

 

(c)(1) is admitted to appropriatebail;

(c)(2) not commit a federal, stateor local crime during the period of release;

 

(c)(3) remain in the custody of a designated person whoagrees to assume supervision of the defendant and who agrees to report anyviolation of a release condition to the court, if the designated person isreasonably able to assure the court that the person will appear as required andwill not pose a danger to the safety of any other person or the community;

 

(c)(4) maintain employment, or if unemployed, actively seekemployment;

 

(c)(5) maintain or commence aneducational program;

 

(c)(6) abide by specified restrictions on personalassociations, place of abode or travel;

 

(c)(7) avoid all contact with the victim or victims of thecrime(s), any witness or witnesses who testified against the defendant and anypotential witnesses who might testify concerning the offenses if the appealresults in a reversal or an order for a new trial;

 

(c)(8) report on a regular basis toa designated law enforcement agency, pretrial services agency or other agency;

 

(c)(9) comply with a specifiedcurfew;

 

(c)(10) refrain from possessing a firearm, destructivedevice or other dangerous weapon;

 

(c)(11) refrain from possessing orusing alcohol, or any narcotic drug or other controlled substance except asprescribed by a licensed medical practitioner;

 

(c)(12) undergo available medical, psychological orpsychiatric treatment, including treatment for drug or alcohol abuse ordependency;

 

(c)(13) execute an agreement to forfeit, upon failing toappear as required, such designated property, including money, as is reasonablynecessary to assure the appearance of the defendant as required, and post withthe court such indicia of ownership of the property or such percentage of themoney as the court may specify;

 

(c)(14) return to custody forspecified hours following release for employment, schooling or other limitedpurposes; and

 

(c)(15) satisfy any other conditionthat is reasonably necessary to assure the appearance of the defendant asrequired and to assure the safety of persons and property in the community.

 

(d) The court may at any time for good cause shown amend theorder granting release to impose additional or different conditions of release.