REFERENCE TITLE: victims' rights

 

 

 

State of Arizona

House of Representatives

Fifty-fourth Legislature

First Regular Session

2019

 

 

HB 2466

 

Introduced by

Representative Blackman

 

 

AN ACT

 

amending sections 8‑383, 8‑387, 8‑388, 8‑396, 8‑397, 8‑398, 8‑404, 8‑416, 13‑4402, 13‑4411, 13‑4415, 13‑4417, 13‑4425, 13‑4437, 22‑371 and 22‑425, Arizona Revised Statutes; relating to victims' rights.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 


Be it enacted by the Legislature of the State of Arizona:

Section 1.  Section 8-383, Arizona Revised Statutes, is amended to read:

START_STATUTE8-383.  Implementation of rights and duties

A.  Except as provided in sections 8‑385 and 8‑386 and 8‑389, subsection B, the rights and duties that are established by this article arise on the arrest or formal charging of a juvenile who is alleged to be responsible for a delinquent act against a victim.  The rights and duties continue to be enforceable pursuant to this article until the final disposition of the charges, including acquittal or dismissal of the charges, all postadjudication release, review and appellate proceedings and the discharge of all proceedings related to restitution.  If a delinquent is ordered to pay restitution to a victim, the rights and duties continue to be enforceable until restitution is paid or a judgment is entered in favor of the victim pursuant to section 8‑344.

B.  If a juvenile's adjudication is reversed and the case is returned to the juvenile court for further proceedings, the victim has the same rights that were applicable to the delinquency proceedings that led to the appeal or other postadjudication relief proceeding.

C.  After the final termination of a delinquency proceeding by dismissal or acquittal, a person who has received notice and has the right to be present and be heard pursuant to the victims' bill of rights, article II, section 2.1, Constitution of Arizona, this article or any court rule is no longer entitled to those rights. END_STATUTE

Sec. 2.  Section 8-387, Arizona Revised Statutes, is amended to read:

START_STATUTE8-387.  Notice of terms and conditions of release

On the request of the victim, the juvenile court probation department or the department of juvenile corrections shall provide a copy of the terms and conditions of release. The copy of the terms and conditions of release may be provided to the victim in an electronic form, pamphlet, information card or other material. END_STATUTE

Sec. 3.  Section 8-388, Arizona Revised Statutes, is amended to read:

START_STATUTE8-388.  Notice of diversion

If an accused is accepted into a diversion program pursuant to section 8‑321, the court probation department administering the program shall give the victim notice of the conditions that the accused must comply with in order for the complaint or citation to be adjusted or dismissed.  The notice shall state whether restitution was required and that, on request of the victim, the victim has the right to be notified of the accused's completion of or termination from the program. END_STATUTE

Sec. 4.  Section 8-396, Arizona Revised Statutes, is amended to read:

START_STATUTE8-396.  Notice of probation modification, termination or revocation disposition matters; notice of arrest

A.  On request of a victim who has provided an address or other contact information, the court probation department shall notify the victim of any of the following:

1.  A probation revocation disposition proceeding or any proceeding in which the court is asked to terminate the probation or intensive probation of the delinquent who committed the delinquent act against the victim.

2.  Any hearing on a proposed modification of the terms of probation or intensive probation.

3.  The arrest of a delinquent pursuant to a warrant issued for a probation violation.

4.  Any hearing on a proposed revocation proceeding.

B.  On request of a victim who has provided a current address or other current contact information, the probation department shall notify the victim of the following:

1.  Any proposed modification to any term of probation if the modification affects restitution or incarceration status or the delinquent's contact with or the safety of the victim.

2.  The victim's right to be heard at a hearing that is set to consider any modification to be made to any term of probation.

3.  Any violation of any term of probation that results in the filing with the court of a petition to revoke probation.

4.  That a petition to revoke probation alleging that the juvenile absconded from probation has been filed with the court.

5.  Any conduct by the juvenile that raises a substantial concern for the victim's safety.

C.  If a victim has requested postadjudication notice and probation is revoked and the juvenile is committed to the department of juvenile corrections, the court probation department shall notify the department of juvenile corrections of the victim's request.

D.  On request of the victim, the department of juvenile corrections shall notify the victim of any of the following:

1.  Any proceeding in which the department may revoke the conditional liberty of the delinquent who committed the delinquent act against the victim.

2.  A modification of the terms of conditional liberty only if the modification will substantially affect the delinquent's contact with the victim or the safety of the victim or if the modification affects restitution or secure care status.

3.  The arrest of a delinquent pursuant to a warrant issued for a conditional liberty violation.END_STATUTE

Sec. 5.  Section 8-397, Arizona Revised Statutes, is amended to read:

START_STATUTE8-397.  Notice of release, discharge or escape from a mental health treatment agency or residential treatment

A.  If the victim has made a request for notice, the court probation department or the department of juvenile corrections, whichever has supervision of the accused or delinquent, shall provide the victim, at least ten days before the release or discharge of the accused or delinquent, with notice of the release or discharge of the accused or delinquent who is placed by court order in a mental health treatment agency or a residential treatment agency.  The mental health treatment agency or residential treatment agency that has custody of the accused or delinquent shall notify the court probation department or department of juvenile corrections, whichever has supervision of the accused or delinquent, at least thirty days before the release or discharge of the accused or delinquent.

B.  The court probation department or the department of juvenile corrections, whichever has supervision of the accused or delinquent, shall provide notice to the victim immediately after the escape or subsequent readmission of the accused or the delinquent notice of the escape or subsequent readmission of the accused or the delinquent who is placed by court order in a mental health treatment agency or a residential treatment agency.  The mental health treatment agency or residential treatment agency that has custody of the accused or delinquent shall immediately notify the court probation department or the department of juvenile corrections, whichever has supervision of the accused or delinquent, of the escape, runaway or subsequent readmission of the accused or delinquent. END_STATUTE

Sec. 6.  Section 8-398, Arizona Revised Statutes, is amended to read:

START_STATUTE8-398.  Request for notice; forms; notice system

A.  The victim shall provide to and maintain with the law enforcement agency that is responsible for providing notice to the victim a request for notice on a form that is provided by that agency.  The form shall include a telephone number and address the victim's contact information, including a telephone number, mailing address, e-mail address or other method of contact that is available to both the victim and the agencyThe victim must maintain at least one method of contact with the agency.  If the victim fails to keep the victim's telephone number and address current at least one method of contact current with the agency, the victim's request for notice is withdrawn.  At any time the victim may request notice of subsequent proceedings by filing on a request form provided by the agency the victim's current telephone number and address.

B.  All notices provided to a victim pursuant to this article shall be on forms developed or reviewed by the attorney general.

C.  The court and all agencies that are responsible for providing notice to the victim shall establish and maintain a system for the receipt of victim requests for notice. END_STATUTE

Sec. 7.  Section 8-404, Arizona Revised Statutes, is amended to read:

START_STATUTE8-404.  Impact statement; predisposition report

A.  The victim may submit a written impact statement or make an oral impact statement to the probation officer for the officer's use in preparing a predisposition or transfer report.

B.  In preparing the predisposition or transfer report, the probation officer shall consider the economic, physical and psychological impact that the delinquent act has had on the victim and the victim's immediate family.

C.  On request, the court probation department shall provide the victim with the following information from the predisposition report:

1.  The referral history.

2.  The probation officer's assessment of the case.

3.  The disposition and treatment recommendations.

4.  The probation officer's recommendations for treatment and disposition.

5.  The detention history. END_STATUTE

Sec. 8.  Section 8-416, Arizona Revised Statutes, is amended to read:

START_STATUTE8-416.  Standing to invoke rights; recovery of damages; right to counsel

A.  The rights enumerated in the victims' bill of rights, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rules belong to the victim.  The victim has standing to seek an order, to bring a special action or to file a notice of appearance in a trial court or an appellate proceeding seeking to enforce any right or to challenge an order denying any right guaranteed to victims.  A victim may not be charged a filing fee to file a special action or to seek an order pursuant to this subsection.  In asserting any right, the victim has the right to be represented by personal counsel at the victim's expense, and the proceedings may be initiated by the victim's counsel or the prosecutor.

B.  A victim has the right to recover damages from a governmental entity responsible for the intentional, knowing or grossly negligent violation of the victim's rights under the victims' bill of rights, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rule.  Nothing in this section alters or abrogates any provision for immunity provided for under common law or statute.

C.  At the request of the victim, the prosecutor may assert any right to which the victim is entitled.

D.  On the filing of a notice of appearance, counsel for the victim shall be endorsed on all pleadings and, if present, be included in all bench conferences and in chambers meetings and sessions with the trial court that directly involve a victim's right enumerated in article II, section 2.1, Constitution of Arizona.

E.  Notwithstanding any other law and without limiting any rights and powers of the victim, the victim has the right to present evidence or information and to make an argument to the court, personally or through counsel, at any proceeding to determine the amount of restitution pursuant to section 13‑804. END_STATUTE

Sec. 9.  Section 13-4402, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4402.  Implementation of rights and duties

A.  Except as provided in sections 13‑4404 and 13‑4405 and 13‑4408, subsection B, the rights and duties that are established by this chapter arise on the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim.  The rights and duties continue to be enforceable pursuant to this chapter until the final disposition of the charges, including acquittal or dismissal of the charges, all post‑conviction release and relief proceedings and the discharge of all criminal proceedings relating to restitution.  If a defendant is ordered to pay restitution to a victim, the rights and duties continue to be enforceable by the court until restitution is paid.

B.  If a defendant's conviction is reversed and the case is returned to the trial court for further proceedings, the victim has the same rights that were applicable to the criminal proceedings that led to the appeal or other post‑conviction relief proceeding.

C.  After the final termination of a criminal prosecution by dismissal with prejudice or acquittal, a person who has received notice and the right to be present and heard pursuant to the victims' rights act, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rule is no longer entitled to such rights. END_STATUTE

Sec. 10.  Section 13-4411, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4411.  Notice of post‑conviction review and appellate proceedings

A.  Within fifteen days after sentencing the prosecutor's office shall, on request, notify the victim of the sentence imposed on the defendant.

B.  The prosecutor's office shall provide the victim with a form that allows the victim to request post‑conviction notice of all post‑conviction review and appellate proceedings, all post‑conviction release proceedings, all probation modification proceedings that impact the victim, all probation revocation or termination proceedings, any decisions that arise out of these proceedings, all releases and all escapes.

C.  The prosecutor's office shall advise the victim on how the completed request form may be filed with the appropriate agencies and departments.

D.  On request of the victim, the prosecutor's office that is responsible for handling any post‑conviction or appellate proceedings immediately shall notify the victim of the proceedings and any decisions that arise out of the proceedings.

E.  Beginning December 1, 2007, the supreme court or court of appeals shall send a victim who requests notice pursuant to this section a copy of the memorandum decision or opinion from the issuing court concurrently with the parties.  If the victim is represented by counsel, the notice shall be provided to the victim's counsel.

F.  A victim has the right to be present and be heard at any proceeding in which the defendant has filed an application to have a judgment of guilt set aside pursuant to section 13‑907.  If the victim has made a request for postconviction notice, the attorney for the state shall provide the victim with notice of the defendant's application and the rights provided to the victim in section 13‑907. END_STATUTE

Sec. 11.  Section 13-4415, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4415.  Notice of probation modification, termination or revocation disposition matters; notice of arrest

A.  On request of a victim who has provided an address or other contact information, the court probation department shall notify the victim of any of the following:

1.  A probation revocation disposition proceeding or any proceeding in which the court is asked to terminate the probation or intensive probation of a person who is convicted of committing a criminal offense against the victim.

2.  Any hearing on a proposed modification of the terms of probation or intensive probation.

3.  The arrest of a person who is on supervised probation and who is arrested pursuant to a warrant issued for a probation violation.

B.  On request of a victim who has provided a current address or other current contact information, the probation department shall notify the victim of the following:

1.  Any proposed modification to any term of probation if the modification affects restitution or incarceration status or the defendant's contact with or the safety of the victim.

2.  The victim's right to be heard at a hearing that is set to consider any modification to be made to any term of probation.

3.  Any violation of any term of probation that results in the filing with the court of a petition to revoke probation.

4.  That a petition to revoke probation alleging that the defendant absconded from probation has been filed with the court.

5.  Any conduct by the defendant that raises a substantial concern for the victim's safety.

C.  If a victim has requested postconviction notice, the court probation department shall provide notice of that request to the state department of corrections and the board of executive clemency if a defendant's probation is revoked and the defendant is committed to the custody of the state department of corrections.

D.  On the request of a victim, the state department of corrections shall provide the victim with the notices that are required by sections 13‑4412 and 13‑4413.

E.  On the request of the victim, the board of executive clemency shall provide the victim with the notice that is required by section 13‑4414. END_STATUTE

Sec. 12.  Section 13-4417, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4417.  Request for notice; forms; notice system

A.  The victim shall provide to and maintain with the agency that is responsible for providing notice to the victim a request for notice on a form that is provided by that agency.  The form shall include a telephone number and address the victim's contact information, including a telephone number, mailing address, e-mail address or other method of contact that is available to both the victim and the agency.  The victim must maintain at least one method of contact with the agency.  If the victim fails to keep the victim's telephone number and address current at least one method of contact current with the agency, the victim's request for notice is withdrawn.  At any time the victim may request notice of subsequent proceedings by filing on a request form provided by the agency the victim's current telephone number and address.

B.  All notices provided to a victim pursuant to this chapter shall be on forms developed or reviewed by the attorney general.

C.  The court and all agencies that are responsible for providing notice to the victim shall establish and maintain a system for the receipt of victim requests for notice. END_STATUTE

Sec. 13.  Section 13-4425, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4425.  Inspection of presentence report

If the presentence report is available to the defendant, the court shall permit the victim to inspect the presentence report, except those parts excised by the court or made confidential by law.   If the court probation department excises any portion of the presentence report, it shall inform the parties and the victim of its decision and shall state on the record its reasons for the excision.  On request of the victim, the prosecutor's office shall provide to the victim a copy of the presentence report. END_STATUTE

Sec. 14.  Section 13-4437, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4437.  Standing to invoke rights; recovery of damages; right to counsel

A.  The rights enumerated in the victims' bill of rights, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rules belong to the victim.  The victim has standing to seek an order, to bring a special action or to file a notice of appearance in a trial court or an appellate proceeding, seeking to enforce any right or to challenge an order denying any right guaranteed to victims.  A victim may not be charged a filing fee to file a special action or to seek an order pursuant to this subsection.  In asserting any right, the victim has the right to be represented by personal counsel at the victim's expense and the proceedings may be initiated by the victim's counsel or the prosecutor.

B.  A victim has the right to recover damages from a governmental entity responsible for the intentional, knowing or grossly negligent violation of the victim's rights under the victims' bill of rights, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rules.  Nothing in this section alters or abrogates any provision for immunity provided for under common law or statute.

C.  At the request of the victim, the prosecutor may assert any right to which the victim is entitled.

D.  On the filing of a notice of appearance, counsel for the victim shall be endorsed on all pleadings and, if present, be included in all bench conferences and in chambers meetings and sessions with the trial court that directly involve a victim's right enumerated in article II, section 2.1, Constitution of Arizona.

E.  Notwithstanding any other law and without limiting any rights and powers of the victim, the victim has the right to present evidence or information and to make an argument to the court, personally or through counsel, at any proceeding to determine the amount of restitution pursuant to section 13‑804.END_STATUTE

Sec. 15.  Section 22-371, Arizona Revised Statutes, is amended to read:

START_STATUTE22-371.  Right of appeal; procedure for taking appeal; transcript

A.  The defendant in a criminal action may appeal to the superior court from the final judgment of a justice or municipal court.

B.  The procedure for appeals from a justice or municipal court to the superior court shall be as provided by rules adopted by the supreme court.

C.  In a trial in a justice or municipal court, a transcript of the proceedings may be ordered in the sole discretion of the superior court.

D.  A defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or from an admission to a probation violation.

E.  A victim, as defined in section 13‑4401 may bring a special action seeking to enforce any right or to challenge an order denying any right guaranteed to victims.END_STATUTE

Sec. 16.  Section 22-425, Arizona Revised Statutes, is amended to read:

START_STATUTE22-425.  Jury trials and appeals in municipal courts

A.  In the trial of offenses for violation of ordinances of cities or towns of such a nature as by the common law were not triable before a jury, no jury trial shall be granted.

B.  Either party may appeal from a municipal court to the superior court in the same manner as appeals are allowed from justice courts.

C.  A victim, as defined in section 13‑4401, may bring a special action seeking to enforce any right or to challenge an order denying any right guaranteed to victims. END_STATUTE