Representative Eric K. Hutchings proposes the following substitute bill:


1     
CRIMINAL CHARGE REDUCTION AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Eric K. Hutchings

5     
Senate Sponsor: Todd Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions relating to the degree of a criminal offense.
10     Highlighted Provisions:
11          This bill:
12          ▸     allows either party to request the court to enter a judgment for conviction to a lower
13     degree of offense;
14          ▸     allows a prosecutor to file or amend an information for certain offenses at one
15     degree lower than the offense in the information;
16          ▸     provides that the court may enter a conviction and impose a sentence for an offense
17     one degree lower; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          76-3-402, as last amended by Laws of Utah 2017, Chapters 282 and 356
26     ENACTS:
27          77-2-1.2, Utah Code Annotated 1953
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 76-3-402 is amended to read:
31          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.