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Rule 27B. Stays pending appeal from a court not of record‑ Hearings de novo, DUI, and reckless driving cases.

 

(a)The procedures in this rule shall be used in determining whether to stay thepayment of any fines or periods of incarceration pending the resolution of anappeal for a hearing de novo, pursuant to Utah Code ? 78A‑7‑118(3).This rule shall also govern stays in all appeals involving violations of Title41, Chapter 6a, Part 5, DUI and Reckless Driving, or any local ordinance as describedin Utah Code ? 41‑6a‑501(2)(a)(iii).

 

(b)Periods of incarceration of 28 days orless.

 

(b)(1)Unless exempted under subsection (b)(2), the justicecourt judge shall, upon the filing of a notice of appeal, stay the term ofincarceration. The Court shall then order the defendant released on the leastrestrictive reasonably available condition or combination of conditions in Rule27(c) that the court determines will reasonably ensure the appearance of the defendantas required and the safety of any other individual, property, and thecommunity.

 

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

 

(b)(2)(A) at thetime of sentencing, the court makes a finding that the defendant poses anidentifiable risk to the safety of another individual, property, or thecommunity and that the period of incarceration, and no less restrictivereasonably available alternative, is necessary to reduce or eliminate thatrisk; or

 

(b)(2)(B) it enters a written finding that the appeal does not appearto have a legal basis.

 

(c)Periods of incarceration of longer than28 days.

 

(c)(1) After, orat the time of, the filing of a notice of appeal, if a stay is desired, thedefendant shall file a written motion requesting a stay of a sentence term ofincarceration of more than 28 days. That motion shall be accompanied by amemorandum indicating the legal basis for the appeal and that the appeal is notbeing taken for purposes of delay. The memorandum shall also address why thedefendant is not a flight risk; and why the defendant does not pose a danger toany other person, property, or the community.

 

(c)(2) A copy ofthe motion, and supporting memorandum shall be servedon the prosecuting attorney. An opposing memorandum may be filed within 7 daysafter receipt of the application, or shorter time as the court deems necessary.A hearing 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 courtshall order the defendant released unless it finds by a preponderance of theevidence that:

 

(c)(3)(A) the defendant is a flight risk;

 

(c)(3)(B) the defendant would pose a danger to any other person,property, or the community if released under any of the conditions set forth inRule 27(c); or

 

(c)(3)(C) the appeal does 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 reasonably available condition or combinationof conditions set forth in Rule 27(c) that the court determines will reasonablyensure the appearance of the defendant as required and the safety of any otherindividual, property, and the community.

 

(d)Fine and Fee payments. Fine and feepayments shall be stayed pending resolution of the appeal.

 

(e)Other terms of sentence or probation. Uponmotion of the defendant, the justice court may stay any other term of sentencerelated to conditions of probation (other than incarceration) pendingdisposition of the appeal, upon notice to the prosecution and a hearing ifrequested by the prosecution.

 

(f)A court may at any time for good cause shown amend its order granting releaseto impose additional or different conditions of release. However, the justicecourt may only act under this subsection (f) if the district court has notdocketed or held any hearings pursuant to this rule.

 

(g)A party dissatisfied with the relief granted, denied or modified under thisrule may petition the district court judge assigned to the appeal for relief.

 

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

 

(g)(2) Thedistrict court shall schedule a hearing within 7 days of its receipt of thepetition, or a shorter time if the court determines justice requires. The courtshall allow the opposing party an opportunity to file a memorandum inopposition to the petition, and to be present and heard at the hearing.

 

(g)(3) Thedistrict court shall use the same presumptions, evidentiary burdens andprocedures outlined in subsections (b), (c) and (d) of this rule in determiningwhether it should stay any terms of the justice court?s sentence during thependency of the appeal.

 

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

 

(h)(1) any terms or orders of the justice court emanating from aplea held in abeyance pursuant to Utah Code ? 77‑2(a)‑1 et seq.;and

 

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

 

EffectiveOctober 1, 2020