H.B. 85 Enrolled

1

SENTENCE REDUCTION CLARIFICATION
2 2007 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Scott L Wyatt
5 Senate Sponsor: Gregory S. Bell
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Criminal Code regarding the procedure for reducing an offense
10 by one or two degrees during the sentencing process.
11 Highlighted Provisions:
12 This bill:
13 . clarifies that "next lower degree of offense" includes removal of a statutory
14 enhancement;
15 . provides the opportunity for the prosecutor and victim to be heard regarding the
16 reduction of the offense;
17 . imposes conditions on reducing the offense if the defendant has been placed on
18 probation;
19 . provides that if a sentence is reduced, the actual title of the offense may not be
20 changed; and
21 . clarifies that sex offenders may not obtain an offense reduction if the sex offender is
22 subject to registration regarding the offense.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:
28 AMENDS:
29 76-3-402, as last amended by Chapters 50 and 189, Laws of Utah 2006

30
31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 76-3-402 is amended to read:
33 76-3-402. Conviction of lower degree of offense -- Procedure and limitations.
34 (1) If at the time of sentencing the court, having regard to the nature and circumstances
35 of the offense of which the defendant was found guilty and to the history and character of the
36 defendant, and after having given any victims present at the sentencing and the prosecuting
37 attorney an opportunity to be heard, concludes it would be unduly harsh to record the
38 conviction as being for that degree of offense established by statute [and to sentence the
39 defendant to an alternative normally applicable to that offense], the court may [unless
40 otherwise specifically provided by law] enter a judgment of conviction for the next lower
41 degree of offense and impose sentence accordingly.
42 [(2) If a conviction is for a third degree felony the conviction is considered to be for a
43 class A misdemeanor if:]
44 [(a) the judge designates the sentence to be for a class A misdemeanor and the sentence
45 imposed is within the limits provided by law for a class A misdemeanor; or]
46 [(b) (i) the imposition of the sentence is stayed and the defendant is placed on
47 probation, whether committed to jail as a condition of probation or not;]
48 [(ii) the defendant is subsequently discharged without violating his probation; and]
49 [(iii) the judge upon motion and notice to the prosecuting attorney, and a hearing if
50 requested by either party or the court, finds it is in the interest of justice that the conviction be
51 considered to be for a class A misdemeanor.]
52 (2) If the court suspends the execution of the sentence and places the defendant on
53 probation, whether or not the defendant is committed to jail as a condition of probation, the
54 court may enter a judgment of conviction for the next lower degree of offense:
55 (a) after the defendant has been successfully discharged from probation;
56 (b) upon motion and notice to the prosecuting attorney;
57 (c) after reasonable effort has been made by the prosecuting attorney to provide notice

58 to any victims;
59 (d) after a hearing if requested by either party under Subsection (2)(c); and
60 (e) if the court finds entering a judgment of conviction for the next lower degree of
61 offense is in the interest of justice.
62 (3) (a) An offense may be reduced only one degree under this section, whether the
63 reduction is entered under Subsection (1) or (2), unless the prosecutor specifically agrees in
64 writing or on the court record that the offense may be reduced two degrees.
65 (b) In no case may an offense be reduced under this section by more than two degrees.
66 (4) This section [may not be construed to] does not preclude any person from obtaining
67 or being granted an expungement of his record as provided by law.
68 (5) [Judgment] The court may not enter judgment for a conviction for a lower degree of
69 offense [may not be entered if there remains] if:
70 (a) the reduction is specifically precluded by law; or
71 (b) if any unpaid balance remains on court ordered restitution for the offense for which
72 the reduction is sought.
73 [(6) Notwithstanding the provisions of this section:]
74 [(a) a person required to register as a sex offender under Section 77-27-21.5 is not
75 eligible to]
76 (6) When the court enters judgment for a lower degree of offense under this section,
77 the actual title of the offense for which the reduction is made may not be altered.
78 (7) (a) A person may not obtain a reduction [of the] under this section of a conviction
79 that requires the person to register as a sex offender[:] until the registration requirements under
80 Section 77-27-21.5 have expired.
81 [(i) while under the jurisdiction of the Department of Corrections; or]
82 [(ii) until the registration requirements under Section 77-27-21.5 have expired; and]
83 (b) [a] A person required to register as a sex offender for the person's lifetime under
84 Subsection 77-27-21.5 (10)(c) may not be granted a reduction of the conviction for the offense
85 or offenses that require the person to register as a sex offender.

86 (8) As used in this section, "next lower degree of offense" includes an offense
87 regarding which:
88 (a) a statutory enhancement is charged in the information or indictment that would
89 increase either the maximum or the minimum sentence; and
90 (b) the court removes the statutory enhancement pursuant to this section.