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Rule 27. Stays of sentencepending motions for new trial or appeal from courts of record.

 

(a) Staying sentence terms other than incarceration.

 

(a)(1)A sentence of death is stayed if a motion for a new trial, an appeal or a petition for other relief is pending. Thedefendant shall remain in the custody of the warden of the Utah State Prisonuntil the appeal or petition for other relief is resolved.

 

(a)(2)When an appeal is taken by the prosecution, a stay of any order ofjudgment in favor of the defendant may be granted by the court upon good causepending disposition of the appeal.

 

(a)(3)Upon the filing of a motion for a new trial or a notice of appeal, and uponmotion of the defendant, the court may stay any sentenced amount of fines,conditions of probation (other than incarceration) pending disposition of the motionfor a new trial or appeal, upon notice to the prosecution and a hearing ifrequested by the prosecution.

 

(a)(4)A party dissatisfied with the trial court?s ruling on such a motion maypetition for relief in the court with appellate jurisdiction.

 

(b) Staying sentence terms of incarceration. A defendant sentenced, or required as a term ofprobation, to serve a period of incarceration in jail or in prison, shall be detained, unless released by the court inconformity with this rule.

 

(b)(1)In general. Before a court may release a defendant after the filing of amotion for a new trial or notice of appeal, the court must:

 

(b)(1)(A) issue a certificateof probable cause; and

 

(b)(1)(B) determine by clearand convincing evidence that the defendant:

 

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

 

(b)(1)(B)(ii) does notpose a danger to the safety of any other person or the community if releasedunder any conditions as set forth in subsection (c).

 

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

 

(b)(2)(A) That motion shall be accompanied by a copy of the filedmotion for a new trial or notice of appeal; a written application for acertificate of probable cause; and a memorandum of law. Thememorandum shall identify the issues to be presented in the motion for a newtrial proceedings or on appeal and support the defendant's position that thoseissues raise a substantial question of law or fact reasonably likely to resultin reversal, an order for a new trial or a sentence that does not include aterm of incarceration in jail or prison. The memorandum shall alsoaddress why clear and convincing evidence exists that the defendant is not aflight risk and that the defendant does not pose a danger to any other personor the community.

 

(b)(2)(B) A copy of the motion, the application for a certificateof probable cause and supporting memorandum shall be servedon the prosecuting attorney. An opposing memorandum may befiled within 14 days after receipt of the application, or within ashorter time as the court deems necessary. A hearing on the application shall be held within 14 days after the court receives theopposing memorandum, or if no opposing memorandum is filed, within 14 daysafter the application is filed with the court.

 

(b)(3)The court shall issue a certificate of probable cause if it finds that themotion for a new trial or appeal:

 

(b)(3)(A) is not being takenfor the purpose of delay; and

 

(b)(3)(B) raises substantialissues of law or fact reasonably likely to result in reversal, an order for anew trial or a sentence that does not include a term of incarceration in jailor prison.

 

(b)(4)If the court issues a certificate of probable cause it shall order thedefendant released if it finds that clear and convincing evidence exists todemonstrate that the defendant is not a flight risk and that the defendant doesnot pose a danger to any other person or the community if released under any ofthe conditions set forth in subsection (c).

 

(b)(5)The court ordering release pending determination of a motion for a new trial orappeal under subsection (b)(4) shall order release on the least restrictivecondition or combination of conditions set forth in subsection (c) that thecourt determines will reasonably assure the appearance of the person as requiredand the safety of persons and property in the community.

 

(b)(6)Review of trial court?s order. A party dissatisfied with the relief granted ordenied under this subsection may petition the court with appellate jurisdictionin which the appeal is pending.

 

(b)(6)(A) If the petition is filed by the defendant, a copy ofthe petition, the affidavit and papers filed in support of the original motionshall be served on the Utah Attorney General if the case involves anyfelony charge, and on the prosecutingattorney if the case involves only misdemeanor charges.

 

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

 

(c) Conditions of release. If the court determines that the defendant maybe released pending motion for a new trial proceedings or an appeal, it mayrelease the defendant on the least restrictive condition or combination ofconditions that the court determines will reasonably assure the appearance ofthe person as required and the safety of persons and property in the community,which conditions may include, without limitation, that the defendant:

 

(c)(1) is admitted to appropriate bail;

 

(c)(2) not commit a federal, state or local crime during theperiod of release;

 

(c)(3)remain in the custody of a designated person who agrees to assume supervisionof the defendant and who agrees to report any violation of a release conditionto the court, if the designated person is reasonably able to assure the courtthat the person will appear as required and will not pose a danger to thesafety of any other person or the community;

 

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

 

(c)(5) maintain or commence an educational program;

 

(c)(6)abide by specified restrictions on personal associations, place of abode ortravel;

 

(c)(7)avoid all contact with the victim or victims of the crime(s), any witness orwitnesses who testified against the defendant and any potential witnesses whomight testify concerning the offenses if the appeal results in a reversal or anorder for a new trial;

 

(c)(8) report on a regular basis to a designated lawenforcement agency, pretrial services agency or other agency;

 

(c)(9) comply with a specified curfew;

 

(c)(10)refrain from possessing a firearm, destructive deviceor other dangerous weapon;

 

(c)(11) refrain from possessing or using alcohol, or anynarcotic drug or other controlled substance except as prescribed by a licensedmedical 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 to appear as required, suchdesignated property, including money, as is reasonably necessary to assure theappearance of the defendant as required, and post with the court such indiciaof ownership of the property or such percentage of the money as the court mayspecify;

 

(c)(14) return to custody for specified hours following releasefor employment, schooling or other limited purposes; and

 

(c)(15) satisfy any other condition that is reasonablynecessary to assure the appearance of the defendant as required and to assurethe safety of persons and property in the community.

 

(d) Amended conditions of release. The court may at any time for good cause shownamend the order granting release to impose additional or differentconditions of release.

 

Effective November 1, 2019