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Rule 27B. Stayspending appeal from a court not of record ‑ Hearings de novo, DUI, andreckless driving cases.

 

(a) The procedures inthis rule shall be used in determining whether to stay the payment of any finesor periods of incarceration pending the resolution of an appeal for a hearingde novo, pursuant to Utah Code ?78A‑7‑118(3). This rule shall alsogovern stays in all appeals involving violations of Title 41, Chapter 6a, Part5, DUI and Reckless Driving, or any local ordinance as described in Utah Code?41‑6a‑501(2)(a)(iii).

 

(b) Periods ofincarceration of 28 days or less.

 

(b)(1) Unless exemptedunder subsection (b)(2), the justice court judge shall, upon the filing of anotice of appeal, stay the term of incarceration. The Court shall then orderthe defendant released on the least restrictive condition or combination ofconditions in Rule 27(c) that the court determines will reasonably assure theappearance of the person as required and the safety of persons and property inthe community.

 

(b)(2) However, thejustice court shall not order a defendant released if:

 

(b)(2)(A) at the time ofsentencing, the court makes a finding that the defendant poses an identifiablerisk to the safety of another or the community and that the period of incarceration,and no less restrictive alternative, is necessary to reduce or eliminate thatrisk; or

 

(b)(2)(B) it entersa written finding that the appeal does not appear to have a legal basis.

 

(c) Periods ofincarceration of longer than 28 days.

 

(c)(1) After, or at thetime of, the filing of a notice of appeal, if a stay isdesired, the defendant shall file a written motion requesting a stay ofa sentence term of incarceration of more than 28 days. That motion shall beaccompanied by a memorandum indicating the legal basis for the appeal and thatthe appeal is not being taken for purposes of delay. The memorandum shall alsoaddress why the defendant is not a flight risk; and why the defendant does notpose a danger to any other person or the community.

 

(c)(2) A copy ofthe motion, and supporting memorandum shall be served on theprosecuting attorney. An opposing memorandum may be filed within 7 days afterreceipt of the application, or shorter time as the court deems necessary. Ahearing on the application shall be held within 7 days of the court receivingeither the opposing memorandum or an indication that no opposing memorandumwill be filed. If no opposing memorandum is filed, the hearing will be heldwithin 14 days after the application is filed with the court.

 

(c)(3) The court shallorder the defendant released unless it finds by a preponderance of the evidencethat:

 

(c)(3)(A) the defendantis a flight risk;

 

(c)(3)(B) the defendantwould pose a danger to any other person or the community if released under anyof the conditions set forth in Rule 27(c); or

 

(c)(3)(C) the appealdoes not appear to have a legal basis.

 

(c)(4) The courtordering release pending appeal under subsection (c)(3) shall order thatrelease on the least restrictive condition or combination of conditions setforth in Rule 27(c) that the court determines will reasonably assure theappearance of the person as required and the safety of persons and property inthe community.

 

(d) Fine and Feepayments. Fine and fee payments shall be stayed pending resolution of theappeal.

 

(e) Other terms ofsentence or probation. Upon motion of the defendant, the justice court may stayany other term of sentence related to conditions of probation (other thanincarceration) pending disposition of the appeal, upon notice to theprosecution and a hearing if requested by the prosecution.

 

(f) A court may at anytime for good cause shown amend its order granting release to impose additionalor different conditions of release. However, the justice court may only actunder this subsection (f) if the district court has not docketed or held anyhearings pursuant to this rule.

 

(g) A party dissatisfiedwith the relief granted, denied or modified under this rule may petition thedistrict court judge assigned to the appeal for relief.

 

(g)(1) Such petitionshall be in writing and accompanied by the notice of appeal filed in thejustice court, the original motion for a stay and accompanying papers filed inthe justice court, if any, and any orders or findings of the justice court onthe issue. The petition shall be served on the opposing party.

 

(g)(2) The districtcourt shall schedule a hearing within 7 days of its receipt of the petition, ora shorter time if the court determines justice requires. The court shall allowthe opposing party an opportunity to file a memorandum in opposition to thepetition, and to be present and heard at the hearing.

 

(g)(3) The districtcourt shall use the same presumptions, evidentiary burdens and procedures outlinedin subsections (b), (c) and (d) of this rule in determining whether it shouldstay any terms of the justice court?s sentence during the pendency of theappeal.

 

(h) For purposes of thisrule, ?term of sentence? or ?sentence? shall include:

 

(h)(1) any terms ororders of the justice court emanating from a plea held in abeyance pursuant toUtah Code ? 77‑2(a)‑1 et seq.; and

 

(h)(2) findings of contempt pursuant to Utah Code ? 78B‑6‑301et seq.                            

 

Effective March 6, 2018