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Rule 27. Stays of sentence pending motionsfor new trial or appeal from courts of record.

 

(a)Staying sentence terms other thanincarceration.

 

(a)(1)A sentence of death is stayed if a motion for a new trial, 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 of any order of judgment infavor of the defendant may be granted by the court upon good cause pendingdisposition 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 themotion for a new trial or appeal, upon notice to the prosecution and a hearingif requested by the prosecution.

 

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

 

(b) Staying sentence terms of incarceration.A defendant sentenced, 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 releasea defendant after the filing of a motion for a new trial or notice of appeal,the court must:

 

(b)(1)(A) issue a certificate of probable cause; and

 

(b)(1)(B) determine by clear and convincing evidence that thedefendant:

 

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

 

(b)(1)(B)(ii) does not pose a danger to the physical, psychological, orfinancial and economic safety or well-being of any other individual or thecommunity if released under any conditions as set forth in subsection (c).

 

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

 

(b)(2)(A) Thatmotion shall be accompanied by a copy of the filed motion for a new trial ornotice of appeal; a written application for a certificate of probable cause;and a memorandum of law. The memorandum shall identify the issues to bepresented in the motion for a new trial proceedings or on appeal and supportthe defendant's position that those issues raise a substantial question of lawor fact reasonably likely to result in reversal, an order for a new trial or asentence that does not include a term of incarceration in jail or prison. Thememorandum shall also address why clear and convincing evidence exists that thedefendant is not a flight risk and that the defendant does not pose a danger asoutlined in paragraph (b)(1)(B)(ii).

 

(b)(2)(B) A copyof the motion, the application for a certificate of probable cause andsupporting memorandum shall be served on the prosecuting attorney. An opposingmemorandum may be filed within 14 days after receipt of the application, orwithin a shorter time as the court deems necessary. A hearing on the applicationshall be held within 14 days after the court receives the opposing memorandum,or if no opposing memorandum is filed, within 14 days after the application isfiled with the court.

 

(b)(3) The courtshall issue a certificate of probable cause if it finds that the motion for anew trial or appeal:

 

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

 

(b)(3)(B) raises substantial issues of law or fact reasonably likelyto result in reversal, an order for a new trial or a sentence that does notinclude a term of incarceration in jail or prison.

 

(b)(4) If thecourt issues a certificate of probable cause it shall order the defendantreleased if it finds that clear and convincing evidence exists to demonstratethat the defendant is not a flight risk and does not pose a danger as outlinedin paragraph (b)(1)(B)(ii) if released under any ofthe conditions set forth in subsection?(c).

 

(b)(5) The courtordering release pending determination of a motion for a new trial or appealunder subsection (b)(4) shall order release on theleast restrictive reasonably available condition or combination of conditionsset forth in subsection (c) that the court determines will reasonably ensurethe appearance of the defendant as required and the safety of any other individual,property, and the community.

 

(b)(6) Review of trial court?s order. A partydissatisfied with the relief granted or denied under this subsection (b) maypetition the court with appellate jurisdiction in which the appeal is pending.

 

(b)(6)(A) If thepetition is filed by the defendant, a copy of the petition, the affidavit andpapers filed in support of the original motion shall be served on the UtahAttorney General if the case involves any felony charge,and on the prosecuting attorney if the case involves only misdemeanor charges.

 

(b)(6)(B) If thepetition is filed by the prosecution, a copy of the petition and supportingpapers shall be served on defense counsel, or thedefendant if the defendant is not represented by counsel.

 

(c)Conditions of release. If the courtdetermines that the defendant may be released pending motion for a new trialproceedings or an appeal, it may release the defendant on the least restrictivereasonably available condition or combination of conditions that the courtdetermines will reasonably ensure the appearance of the defendant as requiredand the safety of any other individual, property, and the community. The conditionsmay include, without limitation, that the defendant:

 

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

 

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

 

(c)(3) remain inthe custody of a designated person who agrees to assume supervision of thedefendant and who agrees to report any violation of a release condition to thecourt, if the designated person is reasonably able to assure the court that thedefendant will appear as required and will not pose a danger to the safety ofany other person, property, or the community;

 

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

 

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

 

(c)(6) abide byspecified restrictions on personal associations, place of abode or travel;

 

(c)(7) avoid allcontact with the victim or victims of the crime(s), any witness or witnesseswho testified against the defendant and any potential witnesses who mighttestify concerning the offenses if the appeal results in a reversal or an orderfor a new trial;

 

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

 

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

 

(c)(10) refrainfrom possessing a firearm, destructive device or other dangerous weapon;

 

(c)(11) refrain from possessing or using alcohol, or any narcoticdrug or other controlled substance except as prescribed by a licensed medicalpractitioner;

 

(c)(12) undergoavailable medical, psychological or psychiatric treatment, including treatmentfor drug or alcohol abuse or dependency;

 

(c)(13) executean agreement to forfeit, upon failing to appear as required, such designatedproperty, including money, as is reasonably necessary to assure the appearanceof the defendant as required, and post with the court such indicia of ownershipof the property or such percentage of the money as the court may specify;

 

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

 

(c)(15) satisfy any other condition that is reasonably necessary to ensurethe appearance of the defendant as required and the safety of any otherindividual, property, and the community.

 

(d)Amended conditions of release. Thecourt may at any time for good cause shown amend the order granting release toimpose additional or different conditions of release.

 

EffectiveOctober 1, 2020