Can the Board of Pardons issue restitution orders after sentences expire? Simper v. Board of Pardons Explained

In Simper v. Board of Pardons, the Utah Court of Appeals addressed a critical jurisdictional question regarding the Board of Pardons and Parole’s authority to issue restitution orders after the expiration of criminal sentences.

Background and Facts

Larry Simper pleaded guilty to eight felonies in 2007 and received concurrent five-year prison sentences set to expire January 26, 2013. The following month, he was sentenced for a separate misdemeanor to a consecutive one-year term expiring January 25, 2014. The Board held a restitution hearing in February 2014—after his misdemeanor sentence expired—and issued restitution orders on March 26, 2014. Eight years later, Simper filed a petition for extraordinary relief under Rule 65B, arguing the Board lacked jurisdiction to issue orders after his sentences expired.

Key Legal Issues

The central issue was whether Utah Code § 76-3-401 allowed the Board to aggregate Simper’s felony and misdemeanor sentences for purposes of determining when restitution orders must be issued under § 77-27-6(2)(c)-(d). The district court concluded the sentences could be aggregated, making the orders timely under the sixty-day rule in subsection (2)(c).

Court’s Analysis and Holding

The Court of Appeals reversed, holding that Utah Code § 76-3-401 does not apply to misdemeanor sentences. The court noted that subsection (11) specifically states the section “may not be construed to limit the authority of a court to impose consecutive sentences in misdemeanor cases.” Because the aggregation provisions only apply when subsection (6)(a)’s thirty-year limitation applies, and that limitation excludes misdemeanors, the Board could not treat Simper’s sentences as a single aggregate term.

Under the correct analysis, subsection 77-27-6(2)(d) applied because the Board had continuing jurisdiction over Simper for a separate offense when his felony sentences expired. This required the Board to issue restitution orders before the termination of “all sentences”—not sixty days after. Since the Board issued orders in March 2014, two months after his final sentence expired in January 2014, the orders were untimely and void for lack of jurisdiction.

Practice Implications

This decision provides important guidance for challenging Board restitution orders based on timing and jurisdiction. Practitioners should carefully examine whether clients served concurrent and consecutive sentences, particularly involving both felony and misdemeanor convictions, as the timing requirements under § 77-27-6(2) may be more restrictive than initially apparent. The ruling also demonstrates that extraordinary relief under Rule 65B remains available to challenge jurisdictionally defective Board orders, even years after entry.