Article is the Practice of Obtaining Furloughs via Court Order Illegal?, 1017 UTBJ, Vol. 30, No. 5. 34

Author:Sean Brian, J.

Article Is the Practice of Obtaining Furloughs via Court Order Illegal?

Vol. 30 No. 5 Pg. 34

Utah Bar Journal

October, 2017

September, 2017

Sean Brian, J.

Back in law school, Professor Troy Booher taught us: "To maximize the chances of getting what you want from the judges, you need to tell them what you want, convince them that doing what you ask for is the right thing to do, and then provide an acceptable legal path for doing it." My experience as a law clerk in the Seventh District Court has confirmed this advice again and again. Recently, one judge asked me to look into the "legal path" to grant a pro se request for a medical furlough from the county jail. I found that judges throughout the state grant these kinds of furloughs as a matter of standard practice, but struggled to find any legal basis for doing so. Indeed, the sample of requests I was able to find cited no law at all.

In general, the court loses subject matter jurisdiction over a case after a valid sentence and final judgment is entered. State v. Rodrigues, 2009 UT 62, ¶ 13, 218 P.3d 610. The exceptions are (1) where the judgment or sentence is not valid and is therefore subject to correction at any time, Utah R. Crim. P. 22 (e); (2) through a petition under Post-Conviction Remedies Act, Utah R. Civ. P. 65C; and (3) through a motion for extraordinary relief after all other plain, speedy, and adequate remedies are exhausted, Id. R. 65B.

In the context of a furlough, the sentence is admittedly valid, so a correction under Rule 22 (e) and a petition under the Post-Conviction Remedies Act are ruled out. If an inmate were to argue that the incarceration coupled with the medical issue constitutes a wrongful restraint on personal liberty under the Utah Constitution's Unnecessary Rigor Clause, a court might permissibly grant a furlough under Rule 65B. See Utah Const, art. I, § 9 ("Persons arrested or imprisoned shall not be treated with unnecessary rigor."); Dexter v. Bosko, 2008 UT 29, ¶ 6,184 P3d 592. However, the court would first have to find that there is no other "plain, speedy and adequate remedy." Utah R. Civ. P. 65B. That finding is likely precluded because two statutes provide an...

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