Utah Code
Utah Code § 78B-9-402 (2026)
Petition for determination of factual innocence -- Sufficient allegations -- Notification of victim -- Payment to surviving spouse
✓ current as of May 2026
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An individual who has been convicted of a felony offense may petition the district court in the county in which the individual was convicted for a hearing to establish that the individual is factually innocent of the crime or crimes of which the individual was convicted.
The petition shall contain an assertion of factual innocence under oath by the petitioner and shall aver, with supporting affidavits or other credible documents, that:
newly discovered material evidence exists that, if credible, establishes that the petitioner is factually innocent;
the specific evidence identified by the petitioner in the petition establishes innocence;
the material evidence is not merely cumulative of evidence that was known;
the material evidence is not merely impeachment evidence; and
viewed with all the other evidence, the newly discovered evidence demonstrates that the petitioner is factually innocent.
The court shall review the petition in accordance with the procedures in Subsection (9)(b), and make a finding that the petition has satisfied the requirements of Subsection (2)(a).
If the court finds the petition does not meet all the requirements of Subsection (2)(a), the court shall dismiss the petition without prejudice and send notice of the dismissal to the petitioner and the attorney general.
The petition shall also contain an averment that:
neither the petitioner nor the 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 motion, and the evidence could not have been discovered by the petitioner or the petitioner's counsel through the exercise of reasonable diligence; or
a court has found ineffective assistance of counsel for failing to exercise reasonable diligence in uncovering the evidence.
Upon entry of a finding that the petition is sufficient under Subsection (2)(a), the court shall then review the petition to determine if Subsection (3)(a) has been satisfied.
If the court finds that the requirements of Subsection (3)(a) have not been satisfied, the court may dismiss the petition without prejudice and give notice to the petitioner and the attorney general of the dismissal, or the court may waive the requirements of Subsection (3)(a) if the court finds the petition should proceed to hearing based upon the strength of the petition, and that there is other evidence that could have been discovered through the exercise of reasonable diligence by the petitioner or the petitioner's counsel at trial, and the other evidence:
was not discovered by the petitioner or the petitioner's counsel;
is material upon the issue of factual innocence; and
has never been presented to a court.
If the conviction for which the petitioner asserts factual innocence was based upon a plea of guilty, the petition shall contain the specific nature and content of the evidence that establishes factual innocence.
The court shall review the evidence and may dismiss the petition at any time in the course of the proceedings, if the court finds that the evidence of factual innocence relies solely upon the recantation of testimony or prior statements made by a witness against the petitioner, and the recantation appears to the court to be equivocal or self serving.
An individual who has already obtained postconviction relief that vacated or reversed the individual's conviction or sentence may also file a petition under this part in the same manner and form as described above, if no retrial or appeal regarding this offense is pending.
If some or all of the evidence alleged to be exonerating is biological evidence subject to DNA testing, the petitioner shall seek DNA testing in accordance with Section 78B-9-301.
Except as provided in Subsection (9), the petition and all subsequent proceedings shall be in compliance with and governed by Utah Rules of Civil Procedure, Rule 65C and shall include the underlying criminal case number.
After a petition is filed under this section, prosecutors, law enforcement officers, and crime laboratory personnel shall cooperate in preserving evidence and in determining the sufficiency of the chain of custody of the evidence which is the subject of the petition.
An individual who files a petition under this section shall serve notice of the petition and a copy of the petition upon the office of the prosecuting attorney who obtained the conviction and upon the attorney general.
The assigned judge shall conduct an initial review of the petition.
If it is apparent to the court that the petitioner is either merely relitigating facts, issues, or evidence presented in previous proceedings or presenting issues that appear frivolous or speculative on their face, the court shall dismiss the petition, state the basis for the dismissal, and serve notice of dismissal upon the petitioner and the attorney general.
If, upon completion of the initial review, the court does not dismiss the petition, the court shall order the attorney general to file a response to the petition.
The attorney general shall, within 30 days after the day on which the attorney general receives the court's order, or within any additional period of time the court allows, answer or otherwise respond to all proceedings initiated under this part.
After the time for response by the attorney general under Subsection (9)(b) has passed, the court shall order a hearing if the court finds the petition meets the requirements of Subsections (2) and (3) and finds there is a bona fide and compelling issue of factual innocence regarding the charges of which the petitioner was convicted.
No bona fide and compelling issue of factual innocence exists if the petitioner is merely relitigating facts, issues, or evidence presented in a previous proceeding or if the petitioner is unable to identify with sufficient specificity the nature and reliability of the newly discovered evidence that establishes the petitioner's factual innocence.
If the parties stipulate that the evidence establishes that the petitioner is factually innocent, the court may find the petitioner is factually innocent without holding a hearing.
If the state will not stipulate that the evidence establishes that the petitioner is factually innocent, no determination of factual innocence may be made by the court without first holding a hearing under this part.
The court may not grant a petition for a hearing under this part during the period in which criminal proceedings in the matter are pending before any trial or appellate court, unless stipulated to by the parties.
Any victim of a crime that is the subject of a petition under this part, and who has elected to receive notice under Section 77-38-3, shall be notified by the state's attorney of any hearing regarding the petition.
A petition to determine factual innocence under this part, or Part 3, Postconviction Testing of DNA, shall be filed separately from any petition for postconviction relief under Part 1, General Provisions.
Separate petitions may be filed simultaneously in the same court.
The procedures governing the filing and adjudication of a petition to determine factual innocence apply to all petitions currently filed or pending in the district court and any new petitions filed on or after June 1, 2012.
As used in this Subsection (14) and in Subsection (15):
"Married" means the legal marital relationship established between two individuals and as recognized by the law; and
"Spouse" means an individual married to the petitioner at the time the petitioner was found guilty of the offense regarding which a petition is filed and who has since then been continuously married to the petitioner until the petitioner's death.
A claim for determination of factual innocence under this part is not extinguished upon the death of the petitioner.
If any payments are already being made to the petitioner under this part at the time of the death of the petitioner, or if the finding of factual innocence occurs after the death of the petitioner, the payments due under Section 78B-9-405 shall be paid in accordance with Section 78B-9-405 to the petitioner's surviving spouse.
Payments cease upon the death of the spouse.
The spouse under Subsection (14) forfeits all rights to receive any payment under this part if the spouse is charged with a homicide established by a preponderance of the evidence that meets the elements of any felony homicide offense in Title 76, Chapter 5, Offenses Against the Individual, except automobile homicide under Section 76-5-207, applying the same principles of culpability and defenses as in Title 76, Criminal Offenses, including Title 76, Chapter 2, Principles of Criminal Responsibility.
Notes of Decisions
Cited in 19
cases (3 in the last 5 years), 2010–2024 · leading case: Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010).
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
Brown v. State, 2013 UT 42 (Utah 2013). “22 If the petitioner meets her threshold burden under section 402, a post-conviction court turns to the second stage of the process, which is outlined in section 78B-9- 404.”
Gressman v. State, 2013 UT 63 (Utah 2013). “See UTAH CODE §§ 78B-9-402(14), -405(8) (2012). They accordingly “enlarge, eliminate, or destroy vested or contractual rights” and do not merely dictate “the practice and procedure or the legal machinery by which the substantive law is determined or made effective.”
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
Ashby v. State, 2023 UT 19 (Utah 2023). “Ashby’s Innocence Petition ¶30 After the Board of Pardons hearing, Ashby filed a petition for the determination of her factual innocence under Utah Code section 78B-9-402 and rule 65C of the Utah Rules of Civil Procedure, 6 Cite as: 2023 UT 19 Opinion of the Court attaching…”
Thompson v. State, 2024 UT 27 (Utah 2024). “The post-conviction court found that Thompson was entitled to a hearing.”
Miller v. State, 2014 UT App 280 (Utah Ct. App. 2014). “Utah Code section 78B-9-402(1) allows a person convicted of a felony to petition the district court "for a hearing to establish that the person is factually innocent of the crime or crimes of which the person was convicted." Id. § 78B-9-402(1).”
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
Patterson v. State, 2021 UT 52 (Utah 2021). “(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…”
McClellan v. State, 2012 UT App 316 (Utah Ct. App. 2012). “3 See Utah Code Ann. § 78B-9-402(2)-(8) (setting forth the required contents of the petition); Utah R.”
Meinhard v. State, 2016 UT 12 (Utah 2016). “He points to Utah Code section 78B-9-402(2)(a)(i), which prescribes standards for a petitioner to bring forth any "credible," "newly discovered material evidence" that "establishes that the petitioner is factually innocent.”
Reeves v. Nooth, 432 P.3d 1105 (Or. Ct. App. 2018). “§ 46-21-102 (providing a similar exception); Utah Code Ann. § 78B-9-402 (describing petition for determination of "factual innocence" based on newly discovered evidence).”
— Utah Code § 78B-9-402(0)(b) — 1 case
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
— Utah Code § 78B-9-402(0)(c) — 1 case
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
— Utah Code § 78B-9-402(1) — 6 cases
Brown v. State, 2013 UT 42 (Utah 2013). “22 If the petitioner meets her threshold burden under section 402, a post-conviction court turns to the second stage of the process, which is outlined in section 78B-9- 404.”
Miller v. State, 2014 UT App 280 (Utah Ct. App. 2014). “Utah Code section 78B-9-402(1) allows a person convicted of a felony to petition the district court "for a hearing to establish that the person is factually innocent of the crime or crimes of which the person was convicted." Id. § 78B-9-402(1).”
Ashby v. State, 2023 UT 19 (Utah 2023). “Ashby’s Innocence Petition ¶30 After the Board of Pardons hearing, Ashby filed a petition for the determination of her factual innocence under Utah Code section 78B-9-402 and rule 65C of the Utah Rules of Civil Procedure, 6 Cite as: 2023 UT 19 Opinion of the Court attaching…”
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
Brown v. State, 2013 UT 42 (Utah 2013).
— Utah Code § 78B-9-402(14) — 2 cases
Gressman v. State, 2013 UT 63 (Utah 2013). “See UTAH CODE §§ 78B-9-402(14), -405(8) (2012). They accordingly “enlarge, eliminate, or destroy vested or contractual rights” and do not merely dictate “the practice and procedure or the legal machinery by which the substantive law is determined or made effective.”
Gressman v. State, 2013 UT 63 (Utah 2013).
— Utah Code § 78B-9-402(2) — 4 cases
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
McClellan v. State, 2012 UT App 316 (Utah Ct. App. 2012). “3 See Utah Code Ann. § 78B-9-402(2)-(8) (setting forth the required contents of the petition); Utah R.”
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
— Utah Code § 78B-9-402(2)(a) — 9 cases
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
Brown v. State, 2013 UT 42 (Utah 2013). “22 If the petitioner meets her threshold burden under section 402, a post-conviction court turns to the second stage of the process, which is outlined in section 78B-9- 404.”
Gressman v. State, 2013 UT 63 (Utah 2013). “See UTAH CODE §§ 78B-9-402(14), -405(8) (2012). They accordingly “enlarge, eliminate, or destroy vested or contractual rights” and do not merely dictate “the practice and procedure or the legal machinery by which the substantive law is determined or made effective.”
Miller v. State, 2014 UT App 280 (Utah Ct. App. 2014). “Utah Code section 78B-9-402(1) allows a person convicted of a felony to petition the district court "for a hearing to establish that the person is factually innocent of the crime or crimes of which the person was convicted." Id. § 78B-9-402(1).”
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
— Utah Code § 78B-9-402(2)(a)(i) — 5 cases
Brown v. State, 2013 UT 42 (Utah 2013). “22 If the petitioner meets her threshold burden under section 402, a post-conviction court turns to the second stage of the process, which is outlined in section 78B-9- 404.”
Thompson v. State, 2024 UT 27 (Utah 2024). “The post-conviction court found that Thompson was entitled to a hearing.”
Meinhard v. State, 2016 UT 12 (Utah 2016). “He points to Utah Code section 78B-9-402(2)(a)(i), which prescribes standards for a petitioner to bring forth any "credible," "newly discovered material evidence" that "establishes that the petitioner is factually innocent.”
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
Brown v. State, 2013 UT 42 (Utah 2013).
— Utah Code § 78B-9-402(2)(a)(iv) — 3 cases
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
Thompson v. State, 2024 UT 27 (Utah 2024). “The post-conviction court found that Thompson was entitled to a hearing.”
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
— Utah Code § 78B-9-402(2)(a)(v) — 3 cases
Brown v. State, 2013 UT 42 (Utah 2013). “22 If the petitioner meets her threshold burden under section 402, a post-conviction court turns to the second stage of the process, which is outlined in section 78B-9- 404.”
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
Brown v. State, 2013 UT 42 (Utah 2013).
— Utah Code § 78B-9-402(2)(a)(vi) — 1 case
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
— Utah Code § 78B-9-402(2)(b) — 2 cases
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
— Utah Code § 78B-9-402(3)(a) — 1 case
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
— Utah Code § 78B-9-402(3)(b) — 1 case
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
— Utah Code § 78B-9-402(4) — 1 case
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
— Utah Code § 78B-9-402(5) — 3 cases
Gressman v. State, 2013 UT 63 (Utah 2013). “See UTAH CODE §§ 78B-9-402(14), -405(8) (2012). They accordingly “enlarge, eliminate, or destroy vested or contractual rights” and do not merely dictate “the practice and procedure or the legal machinery by which the substantive law is determined or made effective.”
Thompson v. State, 2024 UT 27 (Utah 2024). “The post-conviction court found that Thompson was entitled to a hearing.”
Gressman v. State, 2013 UT 63 (Utah 2013).
— Utah Code § 78B-9-402(6) — 1 case
Meinhard v. State, 2016 UT 12 (Utah 2016). “He points to Utah Code section 78B-9-402(2)(a)(i), which prescribes standards for a petitioner to bring forth any "credible," "newly discovered material evidence" that "establishes that the petitioner is factually innocent.”
— Utah Code § 78B-9-402(6)(b) — 1 case
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
— Utah Code § 78B-9-402(6)(b)(D) — 1 case
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
— Utah Code § 78B-9-402(6)(b)(i) — 1 case
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “See Utah Code Ann. § 78B-9-402 (Supp. 2009). Because we determine that Miller's petition presents a "bona fide issue as to whether [he] is factually innocent of the charges of which [he] was convicted," see id.”
— Utah Code § 78B-9-402(7) — 1 case
McClellan v. State, 2012 UT App 316 (Utah Ct. App. 2012). “3 See Utah Code Ann. § 78B-9-402(2)-(8) (setting forth the required contents of the petition); Utah R.”
— Utah Code § 78B-9-402(8)(b) — 1 case
Miller v. State, 2014 UT App 280 (Utah Ct. App. 2014). “Utah Code section 78B-9-402(1) allows a person convicted of a felony to petition the district court "for a hearing to establish that the person is factually innocent of the crime or crimes of which the person was convicted." Id. § 78B-9-402(1).”
— Utah Code § 78B-9-402(9)(b) — 3 cases
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
Stuart v. State, 2016 UT App 86 (Utah Ct. App. 2016).
— Utah Code § 78B-9-402(9)(c) — 2 cases
Wamsley v. State, 2014 UT App 254 (Utah Ct. App. 2014). “" See Utah Code Ann. § 78B-9-402(@2)(a)iv) (LexisNexis Supp.”
Perea v. State, 2018 UT App 229 (Utah Ct. App. 2018). “§ 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted.”
— Utah Code § 78B-9-402(9)(c)(i) — 2 cases
Ashby v. State, 2023 UT 19 (Utah 2023). “Ashby’s Innocence Petition ¶30 After the Board of Pardons hearing, Ashby filed a petition for the determination of her factual innocence under Utah Code section 78B-9-402 and rule 65C of the Utah Rules of Civil Procedure, 6 Cite as: 2023 UT 19 Opinion of the Court attaching…”
Thompson v. State, 2024 UT 27 (Utah 2024). “The post-conviction court found that Thompson was entitled to a hearing.”
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