Utah Code » Title 78B, Chapter 9 — Postconviction Remedies Act; part 78B-9-4 — Postconviction Determination of Factual Innocence
Utah Code

Utah Code § 78B-9-401.5 (2026)

Definitions

✓ current as of May 2026
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As used in this part:

"Bona fide and compelling issue of factual innocence" means that the newly discovered material evidence presented by the petitioner, if credible, would clearly establish the factual innocence of the petitioner.
"Factual innocence" or "factually innocent" means a person did not:
engage in the conduct for which the person was convicted;
engage in conduct relating to any lesser included offenses of the crime for which the person was convicted; or
commit any other felony arising out of or reasonably connected to the facts supporting the indictment or information upon which the person was convicted.
"Newly discovered material evidence" means evidence that was not available to the petitioner at trial or during the resolution on the merits by the trial court of any motion to withdraw a guilty plea or motion for new trial and which is relevant to the determination of the issue of factual innocence, and may also include:
evidence which was discovered prior to or in the course of any appeal or postconviction proceedings that served in whole or in part as the basis for vacatur or reversal of the conviction of petitioner; or
evidence that supports the claims within a petition filed under Part 1, General Provisions, which is pending at the time of the court's determination of factual innocence.
"Period of incarceration" means any sentence of imprisonment, including jail, which was served after judgement of conviction.
Notes of Decisions
Cited in 12 cases (2 in the last 5 years), 2013–2024 · leading case: Brown v. State, 2013 UT 42 (Utah 2013).
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Brown v. State, 2013 UT 42 (Utah 2013). · cites it 4× “50 UTAH CODE § 78B-9-401.5(2)(a) (defining factual innocence); see also Greener v.”
State v. Wilkerson, 2020 UT App 160 (Utah Ct. App. 2020). · cites it 3× “Wilkerson points us to section 78B-9-401.5 of the Utah Code, which is part of our statute concerning “Postconviction Determination of Factual Innocence.”
Thompson v. State, 2024 UT 27 (Utah 2024). · cites it 3× “” UTAH CODE § 78B-9-404(3). Critically, the court may not find that the petitioner is factually innocent unless it determines that the petitioner did not commit the offense of which the petitioner was convicted and “the __________________________________________________________…”
Gressman v. State, 2013 UT 63 (Utah 2013). “UTAH CODE § 78B-9-401.5(2); id. § 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the…”
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). · cites it 2× “§ 78B-9-401.5(1) (2012). "Factual innocence" means that the petitioner did not "engage in the conduct for which [the petitioner] was convicted," "engage in conduct relating to any lesser included offenses of the crime for which [the petitioner] was convicted," or "commit any…”
Ashby v. State, 2023 UT 19 (Utah 2023). “” See UTAH CODE § 78B-9-401.5(2)(a). ¶73 Both parties agree that Kevin’s recantation, if believable, is sufficient to prove Ashby’s factual innocence by clear and convincing evidence.”
State of Iowa v. Patrick Ryan Nicoletto, 862 N.W.2d 621 (Iowa 2015). “65 (2015)); Utah Code Ann. § 78B-9-401.5(4) (West, Westlaw current through 2014 Gen.”
Miller v. State, 2014 UT App 280 (Utah Ct. App. 2014). “§ 78B-9-401.5(2). However, "[ilf it is apparent to the court that the petitioner is either merely relitigating facts, issues, or evidence presented in previous proceedings or pi‘esenting issues that appear frivolous or speculative on their face," "the court shall dismiss the…”
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). · cites it 2× “§ 78B-9-401.5(1) (LexisNexis 2012). {22 The evidence before the district court does not meet that threshold.”
Brown v. State, 2013 UT 42 (Utah 2013). · cites it 2× “50 UTAH CODE § 78B-9-401.5(2)(a) (defining factual innocence); see also Greener v.”
Gressman v. State, 2013 UT 63 (Utah 2013). “UTAH CODE § 78B-9-401.5(2); id. § 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the…”
Stuart v. State, 2016 UT App 86 (Utah Ct. App. 2016). “§ 78B-9-401.5(2). "Newly discovered material evidence," in turn, is defined as "evidence that was not available to the petitioner at trial .”
— Utah Code § 78B-9-401.5(1) — 2 cases
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-401.5(1) (2012). "Factual innocence" means that the petitioner did not "engage in the conduct for which [the petitioner] was convicted," "engage in conduct relating to any lesser included offenses of the crime for which [the petitioner] was convicted," or "commit any…”
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “§ 78B-9-401.5(1) (LexisNexis 2012). {22 The evidence before the district court does not meet that threshold.”
— Utah Code § 78B-9-401.5(2) — 7 cases
Gressman v. State, 2013 UT 63 (Utah 2013). “UTAH CODE § 78B-9-401.5(2); id. § 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the…”
Thompson v. State, 2024 UT 27 (Utah 2024). “” UTAH CODE § 78B-9-404(3). Critically, the court may not find that the petitioner is factually innocent unless it determines that the petitioner did not commit the offense of which the petitioner was convicted and “the __________________________________________________________…”
Miller v. State, 2014 UT App 280 (Utah Ct. App. 2014). “§ 78B-9-401.5(2). However, "[ilf it is apparent to the court that the petitioner is either merely relitigating facts, issues, or evidence presented in previous proceedings or pi‘esenting issues that appear frivolous or speculative on their face," "the court shall dismiss the…”
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-401.5(1) (2012). "Factual innocence" means that the petitioner did not "engage in the conduct for which [the petitioner] was convicted," "engage in conduct relating to any lesser included offenses of the crime for which [the petitioner] was convicted," or "commit any…”
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “§ 78B-9-401.5(1) (LexisNexis 2012). {22 The evidence before the district court does not meet that threshold.”
— Utah Code § 78B-9-401.5(2)(a) — 4 cases
Brown v. State, 2013 UT 42 (Utah 2013). “50 UTAH CODE § 78B-9-401.5(2)(a) (defining factual innocence); see also Greener v.”
Thompson v. State, 2024 UT 27 (Utah 2024). “” UTAH CODE § 78B-9-404(3). Critically, the court may not find that the petitioner is factually innocent unless it determines that the petitioner did not commit the offense of which the petitioner was convicted and “the __________________________________________________________…”
Ashby v. State, 2023 UT 19 (Utah 2023). “” See UTAH CODE § 78B-9-401.5(2)(a). ¶73 Both parties agree that Kevin’s recantation, if believable, is sufficient to prove Ashby’s factual innocence by clear and convincing evidence.”
Brown v. State, 2013 UT 42 (Utah 2013). “50 UTAH CODE § 78B-9-401.5(2)(a) (defining factual innocence); see also Greener v.”
— Utah Code § 78B-9-401.5(3) — 2 cases
Brown v. State, 2013 UT 42 (Utah 2013). “50 UTAH CODE § 78B-9-401.5(2)(a) (defining factual innocence); see also Greener v.”
Brown v. State, 2013 UT 42 (Utah 2013). “50 UTAH CODE § 78B-9-401.5(2)(a) (defining factual innocence); see also Greener v.”
— Utah Code § 78B-9-401.5(4) — 2 cases
State v. Wilkerson, 2020 UT App 160 (Utah Ct. App. 2020). “Wilkerson points us to section 78B-9-401.5 of the Utah Code, which is part of our statute concerning “Postconviction Determination of Factual Innocence.”
State of Iowa v. Patrick Ryan Nicoletto, 862 N.W.2d 621 (Iowa 2015). “65 (2015)); Utah Code Ann. § 78B-9-401.5(4) (West, Westlaw current through 2014 Gen.”
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