Utah Code § 76-3-402 : — UTAH CRIMINAL CODEPUNISHMENTS —3-402 - Conviction of lower degree of offense - Procedure and limitations

(1) As used in this section, "lower degree of offense" includes an offense for which:

(a) a statutory enhancement is charged in the information or indictment that would increase either the maximum or the minimum sentence; and

(b) the court removes the statutory enhancement in accordance with this section.

(2) The court may enter a judgment of conviction for a lower degree of offense than established by statute and impose a sentence at the time of sentencing for the lower degree of offense if the court:

(a) takes into account:

(i) the nature and circumstances of the offense of which the defendant was found guilty; and

(ii) the history and character of the defendant;

(b) gives any victim present at the sentencing and the prosecuting attorney an opportunity to be heard; and

(c) concludes that the degree of offense established by statute would be unduly harsh to record as a conviction on the record for the defendant.

(3)

(a) Regardless of whether the defendant is committed to jail as a condition of probation or sentenced to prison, the court has jurisdiction to consider and enter a judgment of conviction for a lower degree of offense:

(i) after the defendant has been successfully discharged from probation or parole;

(ii) upon motion and notice to either party;

(iii) after reasonable effort has been made by the prosecuting attorney to provide notice to any victims;

(iv) after a hearing if requested by either party; and

(v) if the court finds entering a judgment of conviction for the lower degree of offense is in the interest of justice.

(b) In making the finding in Subsection (3)(a)(v), the court shall consider as a factor in favor of granting the reduction, after the defendant's conviction, whether the level of the offense has been reduced by law.

(c) In both the initial motion and at a requested hearing described in Subsection (3)(a), the moving party has the burden to provide evidence sufficient to demonstrate:

(i) that the defendant has been successfully discharged from probation or parole; and

(ii) that the reduction is in the interest of justice.

(4)

(a) An offense may be reduced only one degree under this section, whether the reduction is entered under Subsection (2) or (3), unless the prosecuting attorney specifically agrees in writing or on the court record that the offense may be reduced two degrees.

(b) An offense may not be reduced under this section by more than two degrees.

(5) This section does not preclude an individual from obtaining or being granted an expungement of the individual's record in accordance with Title 77, Chapter 40, Utah Expungement Act.

(6) The court may not enter judgment for a conviction for a lower degree of offense if:

(a) the reduction is specifically precluded by law; or

(b) if any unpaid balance remains on court ordered restitution for the offense for which the reduction is sought.

(7) When the court enters judgment for a lower degree of offense under this section, the actual title of the offense for which the reduction is made may not be altered.

(8)

(a) An individual may not obtain a reduction under this section of a conviction that requires the individual to register as a sex offender until the registration requirements under Title 77, Chapter 41, Sex and Kidnap Offender Registry, have expired.

(b) An individual required to register as a sex offender for the individual's lifetime under Subsection 77-41-105(3)(c) may not be granted a reduction of the conviction for the offense or offenses that require the individual to register as a sex offender.

(9)

(a) An individual may not obtain a reduction under this section of a conviction that requires the individual to register as a child abuse offender until the registration requirements under Title 77, Chapter 43, Child Abuse Offender Registry, have expired.

(b) An individual required to register as a child abuse offender for the individual's lifetime under Subsection 77-43-105(3)(c) may not be granted a reduction of the conviction for the offense or offenses that require the individual to register as a child abuse offender.

Utah Code § 76-3-402

Amended by Chapter 293, 2021 General Session ,§ 1, eff. 5/5/2021.

Amended by Chapter 151, 2020 General Session ,§ 1, eff. 5/12/2020.

Amended by Chapter 356, 2017 General Session ,§ 1, eff. 5/9/2017.

Amended by Chapter 282, 2017 General Session ,§ 6, eff. 5/9/2017.

Amended by Chapter 145, 2012 General Session ,§ 12, eff. 5/8/2012.

Amended by Chapter 103, 2007 General Session