Effective Date: 12 May 2020:
Prior to 2022 if you went to prison or jail as part of your sentence, you could never get a sentence reduction.
Effective May 2020 as long as you successfully completed probation or parole, even if you were sent to prison, you can still ask for a sentence reduction. Commonly known as a motion for a 402 reduction.
You were sentenced for a third degree felony marijuana drug distribution to prison. You did one year in prison and successfully completed all terms of your parole and your court case was successfully closed.
Under the old law you can never reduce your felony to a misdemeanor under Utah Code 76-3-402. Under the new law, you can reduce your felony one-step with the judge’s approval.
Rule 402 Reductions are found at Utah Code Ann 76-3-402. See the entire statute below. The basic qualifications are the following:
(1). Successfully Completed the Case. You must have successfully completed all terms of probation or parole. I.E., All restitution must be paid off. All fines must be paid off and you must have completed any court ordered treatment.
(2). Orders to Show Cause. No or limited orders to show cause on why you screwed up your probation.
(3). Timing. You can do it at sentencing or after sentencing. There is not mandatory waiting period, but often motions are brought once you successfully complete probation.
(4). Who Makes The Decision? A one-step reduction is up to the judge. The judge makes that decision.
(5). Two-Step Reductions. A two-step reduction requires prosecutor approval. Then the judge must agree to it.
Failed to Successfully Complete Probation. Common pitfalls and barriers to obtaining a successfully 402 sentence reduction is that you were discharged from probation unsuccessfully. You can view your court docket on the Utah Xchange and Utah Criminal Defense Attorney Jake Gunter can view your case instantly to see if you were discharged successfully.
Failed to Pay Restitution. You failed to pay off all court probation. Just because your court ordered probation was sent to the Utah State Office of Debt Collection doesn’t mean that you paid it off.
Orders to Show Cause. You may have completed probation successfully, but you had several orders to show cause why you screwed up your probation. Popping hot on a drug test. Getting new charges, or failing to comply with your probation officer all can result in orders to show cause effecting your ability to reduce your conviction severity under a motion for a 402 reduction
The judge will review your court docket for your compliance with his sentencing orders. The judge will see if there are multiple orders to show cause and may not grant your sentence reduction motion.
FELONY DUI. You normally have to wait 10 years to expunge your Utah felony DUI. There is no mandatory waiting period to ask the court for a sentence reduction from a felony DUI to a misdemeanor DUI.
DEALING IN MATERIALS HARMFUL TO MINOR – 3rd Degree Felony. Multiple third degree felony charges of dealing in harmful materials to a minor. Many are dismissed with the plea agreement, but some are entered as convictions. So long as you successfully complete probation, this case is eligible for a sentence reduction. .
No Sentence Reductions on the Following Types of Criminal Cases:
(1). Active Sex or Child Abuse Offense Registration Cases. You cannot use a 402 reduction motion on a case that actively requires you to register as a Utah sex offender. You have to wait until the 10 year registration period is over before you can file a 402 sentence reduction. Same rule for people registering for child abuse cases
(2). Lifetime Sex or Child Abuse Offense Registry Case. If you are registering for life on the Utah sex offense registry, you can never use 402 and sentence reduce that case. Same goes for the lifetime child abuse registrants.
Voting and Gun Rights. Not being a convicted felon has HUGE benefits. Your voting rights may be restored. Your gun and weapon rights may be restored. All convicted felons are restricted persons under Utah gun laws. See Utah Code 76-10-503.
Job/Housing Applications. You can truthfully answer job, employment and financial applications that you are not a convicted felon.
Shortened Expungement Waiting Period. Any felonies that are eligible for an expungement requires a 7 year waiting period. When you reduce your Utah felony to a class A misdemeanor your waiting period is reduced to 5 years. That makes a difference.
Erase the stigma, call/Txt Jake Gunter for a free consult. Normally Jake can you tell you over the phone if you qualify.
HERE IS THE REDLINE VERSION OF WHAT WAS CHANGED TO THE LAW
76-3-402. Conviction of lower degree of offense — Procedure and limitations.
32 [(1) If at the time of sentencing the court, having regard to the nature and
33 circumstances of the offense of which the defendant was found guilty and to the history and
34 character of the defendant, and after having given any victims present at the sentencing and the
35 prosecuting attorney an opportunity to be heard, concludes it would be unduly harsh to record
36 the conviction as being for that degree of offense established by statute, the court may enter a
37 judgment of conviction for the next lower degree of offense and impose sentence accordingly.]
38 (1) As used in this section, “lower degree of offense” includes an offense for which:
39 (a) a statutory enhancement is charged in the information or indictment that would
40 increase either the maximum or the minimum sentence; and
41 (b) the court removes the statutory enhancement in accordance with this section.
42 (2) The court may enter a judgment of conviction for a lower degree of offense than
43 established by statute and impose a sentence at the time of sentencing for the lower degree of
44 offense if the court:
45 (a) takes into account:
46 (i) the nature and circumstances of the offense of which the defendant was found
47 guilty; and
48 (ii) the history and character of the defendant;
49 (b) gives any victim present at the sentencing and the prosecuting attorney an
50 opportunity to be heard; and
51 (c) concludes that the degree of offense established by statute would be unduly harsh to
52 record as a conviction on the record for the defendant.
53 [(2)] (3) (a) If the court suspends the execution of [the] a defendant’s sentence and
54 places the defendant on probation, [whether or not] regardless of whether the defendant is
55 committed to jail as a condition of probation, the court may enter a judgment of conviction for
56 [the next] a lower degree of offense:
57 (i) after the defendant has been successfully discharged from probation;
58 (ii) upon motion and notice to [the prosecuting attorney] either party;
59 (iii) after reasonable effort has been made by the prosecuting attorney to provide notice
60 to any victims;
61 (iv) after a hearing if requested by either party [described in Subsection (2)(a)(iii)]; and
62 (v) if the court finds entering a judgment of conviction for the [next] lower degree of
63 offense is in the interest of justice.
64 (b) In making the finding in Subsection [(2)] (3)(a)(v), the court shall consider as a
65 factor in favor of granting the reduction [that, subsequent to], after the defendant’s conviction,
66 whether the level of the offense has been reduced by law.
67 [(3)] (4) (a) An offense may be reduced only one degree under this section, whether the
68 reduction is entered under Subsection [(1)] (2) or [(2)] (3), unless the [prosecutor] prosecuting
69 attorney specifically agrees in writing or on the court record that the offense may be reduced
70 two degrees.
71 (b) [In no case may an offense] An offense may not be reduced under this section by
72 more than two degrees.
73 [(4)] (5) This section does not preclude [any person] an individual from obtaining or
74 being granted an expungement of [his record as provided by law] the individual’s record in
75 accordance with Title 77, Chapter 40, Utah Expungement Act.
76 [(5)] (6) The court may not enter judgment for a conviction for a lower degree of
77 offense if:
78 (a) the reduction is specifically precluded by law; or
79 (b) if any unpaid balance remains on court ordered restitution for the offense for which
80 the reduction is sought.
81 [(6)] (7) When the court enters judgment for a lower degree of offense under this
82 section, the actual title of the offense for which the reduction is made may not be altered.
83 [(7)] (8) (a) [A person] An individual may not obtain a reduction under this section of a
84 conviction that requires the [person] individual to register as a sex offender until the
85 registration requirements under Title 77, Chapter 41, Sex and Kidnap Offender Registry, have
86 expired.
87 (b) [A person] An individual required to register as a sex offender for the [person’s]
88 individual’s lifetime under Subsection 77-41-105(3)(c) may not be granted a reduction of the
89 conviction for the offense or offenses that require the [person] individual to register as a sex
90 offender.
91 [(8)] (9) (a) [A person] An individual may not obtain a reduction under this section of a
92 conviction that requires the [person] individual to register as a child abuse offender until the
93 registration requirements under Title 77, Chapter 43, Child Abuse Offender Registry, have
94 expired.
95 (b) [A person] An individual required to register as a child abuse offender for the
96 [person’s] individual’s lifetime under Subsection 77-43-105(3)(c) may not be granted a
97 reduction of the conviction for the offense or offenses that require the [person] individual to
98 register as a child abuse offender.
99 [(9) As used in this section, “next lower degree of offense” includes an offense
100 regarding which:]
101 [(a) a statutory enhancement is charged in the information or indictment that would
102 increase either the maximum or the minimum sentence; and]
103 [(b) the court removes the statutory enhancement pursuant to this section.]
104 Section 2. Section 77-2-1.2 is enacted to read:
105 77-2-1.2. Reducing the level of an offense.
106 (1) Notwithstanding any other provision of law, a prosecuting attorney may:
107 (a) present and file an information charging an individual for an offense under
108 Subsections 76-3-103(1)(b) through (d), Subsection 76-3-103(2), or Section 76-3-104 with a
109 classification of the offense at one degree lower than the classification that is provided in
110 statute if the prosecuting attorney believes that the sentence would be disproportionate to the
111 offense because there are special circumstances relating to the offense; or
112 (b) subject to the approval of the court, amend an information, as part of a plea
113 agreement, to charge an individual for an offense under Subsections 76-3-103(1)(b) through
114 (d), Subsection 76-3-103(2), or Section 76-3-104 with a classification of the offense at one
115 degree lower than the classification that is provided in statute.
116 (2) A court may:
117 (a) enter a judgment of conviction for an offense filed under Subsection (1) at one
118 degree lower than classified in statute; and
119 (b) impose a sentence for the offense filed under Subsection (1) at one degree lower
120 than classified in statute.
121 (3) A conviction of an offense at one degree lower than classified in statute under
122 Subsection (2) does not affect the requirements for registration of the offense under Title 77,
123 Chapter 41, Sex and Kidnap Offender Registry, or Title 77, Chapter 43, Child Abuse Offender
124 Registry, if the elements of the offense for which the defendant is convicted are the same as the
125 elements of an offense described in Section 77-41-102 or 77-43-102.
126 (4) This section does not preclude an individual from obtaining and being granted an
127 expungement for the individual’s record in accordance with Title 77, Chapter 40, Utah
128 Expungement Act.
