Utah Code § 78B-9-101 Title.
78B-9-101. Title.
This chapter is known as the "Post-Conviction Remedies Act."
Renumbered and Amended by Chapter 3, 2008 General Session
Amended by Chapter 288, 2008 General Session
General Provisions
Utah Code tit. 78B, ch. 78B-9, pt. 78B-9-P1
in effectUtah Code § 78B-9-102 Replacement of prior remedies.
78B-9-102. Replacement of prior remedies.
(1)
(a) This chapter establishes the sole remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies, including a direct appeal except as provided in Subsection (2). This chapter replaces all prior remedies for review, including extraordinary or common law writs. Proceedings under this chapter are civil and are governed by the rules of civil procedure. Procedural provisions for filing and commencement of a petition are found in Rule 65C, Utah Rules of Civil Procedure.
(b) A court may not enter an order to withdraw, modify, vacate or otherwise set aside a plea unless it is in conformity with this chapter or Section 77-13-6.
(2) This chapter does not apply to:
(a) habeas corpus petitions that do not challenge a conviction or sentence for a criminal offense;
(b) motions to correct a sentence pursuant to Rule 22(e), Utah Rules of Criminal Procedure; or
(c) actions taken by the Board of Pardons and Parole.
Amended by Chapter 450, 2017 General Session
Utah Code § 78B-9-103 Applicability -- Effect on petitions.
78B-9-103. Applicability -- Effect on petitions.
Except for the limitation period established in Section 78B-9-107, this chapter applies only to post-conviction proceedings filed on or after July 1, 1996.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-9-104 Grounds for relief -- Retroactivity of rule.
78B-9-104. Grounds for relief -- Retroactivity of rule.
(1) Unless precluded by Section 78B-9-106 or 78B-9-107, an individual who has been convicted and sentenced for a criminal offense may file an action in the district court of original jurisdiction for postconviction relief to vacate or modify the conviction or sentence upon the following grounds:
(a) the conviction was obtained or the sentence was imposed in violation of the United States Constitution or Utah Constitution;
(b) the conviction was obtained or the sentence was imposed under a statute that is in violation of the United States Constitution or Utah Constitution, or the conduct for which the petitioner was prosecuted is constitutionally protected;
(c) the sentence was imposed or probation was revoked in violation of the controlling statutory provisions;
(d) the petitioner had ineffective assistance of counsel in violation of the United States Constitution or Utah Constitution;
(e) newly discovered material evidence exists that requires the court to vacate the conviction or sentence, because:
(i) neither the petitioner nor petitioner's counsel knew of the evidence at the time of trial or sentencing or in time to include the evidence in any previously filed post-trial motion or postconviction proceeding, and the evidence could not have been discovered through the exercise of reasonable diligence;
(ii) the material evidence is not merely cumulative of evidence that was known;
(iii) the material evidence is not merely impeachment evidence; and
(iv) viewed with all the other evidence, the newly discovered material evidence demonstrates that no reasonable trier of fact could have found the petitioner guilty of the offense or subject to the sentence received;
(f) the petitioner can prove that:
(i) biological evidence, as that term is defined in Section 77-11c-101, relevant to the petitioner's conviction was not preserved in accordance with Title 77, Chapter 11c, Part 4, Preservation of Biological Evidence for Violent Felony Offenses;
(ii)
(A) the biological evidence described in Subsection (1)(f)(i) was not tested previously; or
(B) if the biological evidence described in Subsection (1)(f)(i) was tested previously, there is a material change in circumstance, including a scientific or technological advance, that would make it plausible that a test of the biological evidence described in Subsection (1)(f)(i) would produce a favorable test result for the petitioner; and
(iii) a favorable result described in Subsection (1)(f)(ii), which is presumed for purposes of the petitioner's action under this section, when viewed with all the other evidence, demonstrates a reasonable probability of a more favorable outcome at trial for the petitioner;
(g) the petitioner can prove entitlement to relief under a rule announced by the United States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after conviction and sentence became final on direct appeal, and that:
(i) the rule was dictated by precedent existing at the time the petitioner's conviction or sentence became final; or
(ii) the rule decriminalizes the conduct that comprises the elements of the crime for which the petitioner was convicted; or
(h) the petitioner committed any of the following offenses while subject to force, fraud, or coercion, as defined in Section 76-5-308:
(i) Section 76-18-207, possession of a controlled substance, or an offense described in a statute previously in effect in this state that is the same or substantially similar to a violation of Section 76-18-207;
(ii) Section 76-5d-206, aiding prostitution;
(iii) Section 76-6-206, criminal trespass;
(iv) Section 76-6-413, theft;
(v) Section 76-6-502, possession of forged writing or device for writing;
(vi) any offense in Title 76, Chapter 6, Part 6, Retail Theft;
(vii) Subsection 76-6-1105(2)(a)(i)(A), unlawful possession of another's identification document;
(viii) Section 76-5-419, lewdness;
(ix) Section 76-5d-202, engaging in prostitution;
(x) Section 76-5d-209, sexual solicitation by an actor offering to engage in sexual activity for compensation; or
(xi) Section 76-5d-210, sexual solicitation of a child.
(2) The court may not grant relief from a conviction or sentence unless in light of the facts proved in the postconviction proceeding, viewed with the evidence and facts introduced at trial or during sentencing:
(a) the petitioner establishes that there would be a reasonable likelihood of a more favorable outcome; or
(b) if the petitioner challenges the conviction or the sentence on grounds that the prosecutor knowingly failed to correct false testimony at trial or at sentencing, the petitioner establishes that the false testimony, in any reasonable likelihood, could have affected the judgment of the fact finder.
(3)
(a) The court may not grant relief from a conviction based on a claim that the petitioner is innocent of the crime for which convicted except as provided in Part 3, Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence.
(b) Claims under Part 3, Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence, of this chapter may not be filed as part of a petition under this part, but shall be filed separately and in conformity with the provisions of Part 3, Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence.
Amended by Chapter 362, 2026 General Session
Utah Code § 78B-9-105 Burden of proof.
78B-9-105. Burden of proof.
(1)
(a) Except for claims raised under Subsection 78B-9-104(1)(h), the petitioner has the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.
(b) For claims raised under Subsection 78B-9-104(1)(h), the petitioner has the burden of pleading and proving by clear and convincing evidence the facts necessary to entitle the petitioner to relief.
(c) The court may not grant relief without determining that the petitioner is entitled to relief under the provisions of this chapter and in light of the entire record, including the record from the criminal case under review.
(2) The respondent has the burden of pleading any ground of preclusion under Section 78B-9-106, but once a ground has been pled, the petitioner has the burden to disprove its existence by a preponderance of the evidence.
Amended by Chapter 120, 2022 General Session
Utah Code § 78B-9-106 Preclusion of relief -- Exception.
78B-9-106. Preclusion of relief -- Exception.
(1) A petitioner is not eligible for relief under this chapter upon any ground that:
(a) may still be raised on direct appeal or by a post-trial motion;
(b) was raised or addressed in the trial court, at trial, or on appeal;
(c) could have been but was not raised in the trial court, at trial, or on appeal;
(d) was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for postconviction relief; or
(e) is barred by the limitation period established in Section 78B-9-107.
(2)
(a) The state may raise any of the procedural bars or time bar at any time, including during an appeal from an order granting or denying postconviction relief, unless the court determines that the state should have raised the time bar or procedural bar at an earlier time.
(b) Any court may raise a procedural bar or time bar on the court's own motion, provided that the court gives the parties notice and an opportunity to be heard.
(3)
(a) Notwithstanding Subsection (1)(c), a petitioner may be eligible for relief on a basis that the ground could have been but was not raised in the trial court, at trial, or on appeal, if the failure to raise that ground was due to ineffective assistance of counsel.
(b) Notwithstanding Subsections (1)(c) and (1)(d), a petitioner may be eligible for relief on a basis that the ground could have been but was not raised in the trial court, at trial, on appeal, or in a previous request for postconviction relief, if the failure to raise that ground was due to force, fraud, or coercion as defined in Section 76-5-308.
(4) This section authorizes a merits review only to the extent required to address the exception set forth in Subsection (3).
(5) This section does not apply to a petition filed under Part 3, Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence.
Amended by Chapter 46, 2021 General Session
Utah Code § 78B-9-107 Statute of limitations for postconviction relief.
78B-9-107. Statute of limitations for postconviction relief.
(1) A petitioner is entitled to relief only if the petition is filed within one year after the day on which the cause of action has accrued.
(2) For purposes of this section, the cause of action accrues on the later of the following dates:
(a) the last day for filing an appeal from the entry of the final judgment of conviction, if no appeal is taken;
(b) the entry of the decision of the appellate court that has jurisdiction over the case, if an appeal is taken;
(c) the last day for filing a petition for writ of certiorari in the Utah Supreme Court or the United States Supreme Court, if no petition for writ of certiorari is filed;
(d) the entry of the denial of the petition for writ of certiorari or the entry of the decision on the petition for certiorari review, if a petition for writ of certiorari is filed;
(e) the date on which petitioner knew or should have known, in the exercise of reasonable diligence, of evidentiary facts on which the petition is based; or
(f) the date on which the new rule described in Subsection 78B-9-104(1)(g) is established.
(3)
(a) The limitations period is tolled for any period during which the petitioner was prevented from filing a petition due to state action in violation of the United States Constitution, due to physical or mental incapacity, or for claims arising under Subsection 78B-9-104(1)(h), due to force, fraud, or coercion as defined in Section 76-5-308.
(b) The petitioner has the burden of proving by a preponderance of the evidence that the petitioner is entitled to relief under this Subsection (3).
(4) The statute of limitations is tolled during the pendency of the outcome of a petition asserting:
(a) exoneration through DNA testing under Section 78B-9-303; or
(b) factual innocence under Section 78B-9-402.
(5) Sections 77-19-8, 78B-2-104, and 78B-2-111 do not extend the limitations period established in this section.
(6) This section does not apply to a petition filed under Part 3, Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence.
Amended by Chapter 120, 2022 General Session
Utah Code § 78B-9-108 Effect of granting relief -- Notice.
78B-9-108. Effect of granting relief -- Notice.
(1) If the court grants the petitioner's request for relief, except requests for relief under Subsection 78B-9-104(1)(h), the court shall either:
(a) modify the original conviction or sentence; or
(b) vacate the original conviction or sentence and order a new trial or sentencing proceeding as appropriate.
(2) If the court grants the petitioner's request for relief under Subsection 78B-9-104(1)(h), the court shall:
(a) vacate the original conviction and sentence; and
(b) order the petitioner's records expunged in accordance with Section 77-40a-402.
(3)
(a) If the petitioner is serving a felony sentence, the order shall be stayed for five days. Within the stay period, the respondent shall give written notice to the court and the petitioner that the respondent will pursue a new trial or sentencing proceedings, appeal the order, or take no action.
(b) If the respondent fails to provide notice or gives notice at any time during the stay period that it intends to take no action, the court shall lift the stay and deliver the order to the custodian of the petitioner.
(c) If the respondent gives notice of intent to appeal the court's decision, the stay provided for by Subsection (3)(a) shall remain in effect until the appeal concludes, including any petitions for rehearing or for discretionary review by a higher court. The court may lift the stay if the petitioner can make the showing required for a certificate of probable cause under Section 77-20-302 and Utah Rules of Criminal Procedure, Rule 27.
(d) If the respondent gives notice that it intends to retry or resentence the petitioner, the trial court may order any supplementary orders as to arraignment, trial, sentencing, custody, bail, discharge, or other matters that may be necessary.
Amended by Chapter 120, 2022 General Session
Amended by Chapter 250, 2022 General Session
Utah Code § 78B-9-109 Appointment of pro bono counsel or counsel from Indigent Appellate Defense Division.
78B-9-109. Appointment of pro bono counsel or counsel from Indigent Appellate Defense Division.
(1)
(a) If any portion of the petition is not summarily dismissed, the court may, upon the request of an indigent petitioner, appoint counsel on a pro bono basis or from the Indigent Appellate Defense Division, created in Section 75E-10-602, to represent the petitioner in the postconviction court or on postconviction appeal.
(b) Counsel who represented the petitioner at trial or on the direct appeal may not be appointed to represent the petitioner under this section.
(2) In determining whether to appoint counsel, the court may consider:
(a) whether the petitioner is incarcerated;
(b) the likelihood that an evidentiary hearing will be necessary;
(c) the likelihood that an investigation will be necessary;
(d) the complexity of the factual and legal issues; and
(e) any other factor relevant to the particular case.
(3) An allegation that counsel appointed under this section was ineffective cannot be the basis for relief in any subsequent postconviction petition.
Amended by Chapter 291, 2026 General Session
Utah Code § 78B-9-110 Appeal -- Jurisdiction.
78B-9-110. Appeal -- Jurisdiction.
Any party may appeal from the trial court's final judgment on a petition for post-conviction relief to the appellate court having jurisdiction pursuant to Section 78A-3-102 or 78A-4-103.
Renumbered and Amended by Chapter 3, 2008 General Session
Source: Utah Office of Legislative Research and General Counsel (le.utah.gov)URL: https://le.utah.gov/xcode/Title78B/Chapter9/78B-9-P1.html?v=C78B-9-P1_1800010118000101Fetched: 10/26/2026