State v. Bridgewaters
State v. Bridgewaters, 2020 UT 32 (Petersen, J.)
Criminal
A district court issued a temporary ex parte protective order that was personally served on the defendant the same day. The defendant failed to appear at a hearing a little over two weeks later when the court entered a protective order against the defendant. Under both the ex parte order and the protective order, the defendant was prohibited from communicating with his former girlfriend or going to her residence or workplace. An applicable act requires personal service on the defendant as soon as possible after the hearing. Nobody here personally served the defendant. Instead, counsel notified the court that he or she had mailed a copy of the order to the defendant at the defendant’s last known address in accordance with rule 5 of the Utah R. of Civ. P. That address was his former girlfriend’s residence. A year later, the former girlfriend saw him driving through her complex. He spoke to her and thereafter texted her. He was charged with violating the protective order twice: when he visited his former girlfriend’s apartment and when he texted her. He was bound over on both counts. He argued there was insufficient evidence to show he had been properly served and that the ex parte order had expired after 180 days. The district court determined that an ex parte order did not expire until the defendant was served with the protective order. The defendant filed an interlocutory appeal, which the Utah Court of Appeals certified to the Utah Supreme Court. The Utah Supreme Court affirmed the decision of the district court, holding:
- The defendant was not properly served with the protective order. Even though the protective order does not initiate a protective order proceeding in the same way a summons and complaint commence other civil actions, the legislature intended a protective order to be served as if it were “process.” The Cohabitant Abuse Act specifies that a protective order shall be delivered to the county sheriff for “service of process”—and that phrase indicates that rule 4 (titled “Process”) of the Utah R. of Civ. P. govern. Thus, the Cohabitant Abuse Act and rule 4 require the prosecution to prove that the defendant was properly served in person by the sheriff. The defendant here, however, was served by mail. Service was improper.
- Bindover on both counts was appropriate, because even though the protective order was not properly served, a previous ex parte order was still in effect at the time of the events in question. An ex parte order may remain in effect beyond 180 days if the protective order hearing has already taken place. While a 180-day limit applies to a court’s decision to extend an ex parte order before the court has held a hearing or before the court has issued a protective order, subsection 107(1)(d) applies when a court has held a hearing and has decided to issue a protective order. At that point, the 180-day limitation no longer applies. Under subsection 107(1)(d), once a court holds a hearing on a petition for a protective order and issues such an order, a previously issued ex parte order remains in effect until “service of process of the protective order is completed.”