Utah Supreme Court Hears Challenge Over Whether Repeal Bars Prosecution in State v. Cook

SALT LAKE CITY — The Utah Supreme Court on Wednesday wrestled with whether a general savings statute allows the State to continue prosecuting a defendant after the Legislature repealed and replaced the criminal offense he was charged with.

Dustin Parmley, attorney for Monte Cook, told the court that "Monte Cook is being prosecuted for a crime that no longer exists" and asked the justices to reverse the trial court's ruling on the general savings statute and remand with instructions to dismiss the case with prejudice. Parmley argued the legislative changes altered the criminal elements in ways that remove criminality for some conduct and raised concerns about ex post facto application if the State proceeds under the old elements.

Daniel Boyer, deputy or assistant attorney for the State, responded that Utah's general savings clause — which the attorneys discussed in argument as 76-1-103(2) — "provides that the repeal of a statute does not affect any action or proceeding commenced under or by virtue of the statute repealed." Boyer told the court the information filed against Cook commenced the action and the repeal therefore should not abate the prosecution. He urged that savings provisions exist to avoid unintended legislative pardons and cited federal and out-of-state authority suggesting a repealed statute may still support conviction and punishment where an action began before repeal.

Justices pressed both sides on two central points: whether the Legislature's changes merely altered mens rea or actus reus elements such that the same conduct could still satisfy a new criminal offense, and whether applying the savings clause to preserve prosecution raises ex post facto problems. One justice asked whether a defendant could waive ex post facto claims and whether ameliorative sentencing changes would apply at sentencing if the offense level had been reduced between the time of the offense and sentencing.

Parmley acknowledged some conduct might still support misdemeanor offenses under the new code but said a carve-out of conduct no longer criminal represented a substantive change that should bar prosecution. Boyer countered that earlier courts and the text and history of the savings statute support proceeding under the old offense when the information was filed and that sentencing questions, including potential advisory issues, may not yet be ripe.

Neither side asked the court to decide how sentencing would play out in the hypothetical event of a conviction; both cautioned that sentencing consequences could depend on how a trial unfolds. After hearing argument and a short rebuttal from Parmley, the court announced it would take the matter under advisement and recessed.

State v. Cook presents the Utah Supreme Court with a question about the interplay between the Legislature's power to redefine crimes, the text and history of Utah's general savings statute, and constitutional protections against ex post facto laws. The court did not indicate a timetable for a decision.