Senator Todd D. Weiler proposes the following substitute bill:


1     
CONVICTION REDUCTION AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jordan D. Teuscher

5     
Senate Sponsor: Todd D. Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to the reduction of the degree of an offense for a
10     conviction.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     modifies the requirements for reducing the degree of an offense for a conviction
15     after the defendant is sentenced; and
16          ▸     makes technical and conforming changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          76-3-402, as last amended by Laws of Utah 2021, Chapter 293
24     

25     Be it enacted by the Legislature of the state of Utah:
26          Section 1. Section 76-3-402 is amended to read:
27          76-3-402. Conviction of lower degree of offense -- Procedure and limitations.
28          (1) As used in this section[, "lower]:
29          (a) "Lower degree of offense" includes an offense for which:
30          [(a)] (i) a statutory enhancement is charged in the information or indictment that would
31     increase either the maximum or the minimum sentence; and
32          [(b)] (ii) the court removes the statutory enhancement in accordance with this section.
33          (b) "Minor regulatory offense" means the same as that term is defined in Section
34     77-40a-101.
35          (c) (i) "Rehabilitation program" means a program designed to reduce criminogenic and
36     recidivism risks.
37          (ii) "Rehabilitation program" includes:
38          (A) a domestic violence treatment program, as that term is defined in Section
39     62A-2-101;
40          (B) a residential, vocational, and life skills program, as that term is defined in Section
41     13-53-102;
42          (C) a substance abuse treatment program, as that term is defined in Section 62A-2-101;
43          (D) a substance use disorder treatment program, as that term is defined in Section
44     62A-2-101;
45          (E) a youth program, as that term is defined in Section 62A-2-101;
46          (F) a program that meets the standards established by the Department of Corrections
47     under Section 64-13-25;
48          (G) a drug court, a veterans court, or a mental health court certified by the Judicial
49     Council; or
50          (H) a program that is substantially similar to a program described in Subsections
51     (1)(c)(ii)(A) through (G).
52          (d) "Serious offense" means a felony or misdemeanor offense that is not a minor
53     regulatory offense or a traffic offense.
54          (e) "Traffic offense" means the same as that term is defined in Section 77-40a-101.
55          (f) (i) Except as provided in Subsection (1)(f)(ii), "violent felony" means the same as
56     that term is defined in Section 76-3-203.5.
57          (ii) "Violent felony" does not include an offense, or any attempt, solicitation, or
58     conspiracy to commit an offense, for:
59          (A) the possession, use, or removal of explosive, chemical, or incendiary devices under
60     Subsection 76-10-306(3), (5), or (6); or
61          (B) the purchase or possession of a dangerous weapon or handgun by a restricted
62     person under Section 76-10-503.
63          (2) The court may enter a judgment of conviction for a lower degree of offense than
64     established by statute and impose a sentence at the time of sentencing for the lower degree of
65     offense if the court:
66          (a) takes into account:
67          (i) the nature and circumstances of the offense of which the defendant was found
68     guilty; and
69          (ii) the history and character of the defendant;
70          (b) gives any victim present at the sentencing and the prosecuting attorney an
71     opportunity to be heard; and
72          (c) concludes that the degree of offense established by statute would be unduly harsh to
73     record as a conviction on the record for the defendant.
74          (3) Upon a motion from the prosecuting attorney or the defendant, the court may enter
75     a judgment of conviction for a lower degree of offense than established by statute:
76          (a) after the defendant is successfully discharged from probation or parole for the
77     conviction; and
78          (b) if the court finds that entering a judgment of conviction for a lower degree of
79     offense is in the interest of justice in accordance with Subsection (7).
80          (4) Upon a motion from the prosecuting attorney or the defendant, the court may enter
81     a judgment of conviction for a lower degree of offense than established by statute if:
82          (a) the defendant's probation or parole for the conviction did not result in a successful
83     discharge but the defendant is successfully discharged from probation or parole for a
84     subsequent conviction of an offense;
85          (b) (i) at least five years have passed after the day on which the defendant is sentenced
86     for the subsequent conviction; or
87          (ii) at least three years have passed after the day on which the defendant is sentenced
88     for the subsequent conviction and the prosecuting attorney consents to the reduction;
89          (c) the defendant is not convicted of a serious offense during the time period described
90     in Subsection (4)(b);
91          (d) there are no criminal proceedings pending against the defendant;
92          (e) the defendant is not on probation, on parole, or currently incarcerated for any other
93     offense;
94          (f) if the offense for which the reduction is sought is a violent felony, the prosecuting
95     attorney consents to the reduction; and
96          (g) the court finds that entering a judgment of conviction for a lower degree of offense
97     is in the interest of justice in accordance with Subsection (7).
98          (5) Upon a motion from the prosecuting attorney or the defendant, the court may enter
99     a judgment of conviction for a lower degree of offense than established by statute if:
100          (a) the defendant's probation or parole for the conviction did not result in a successful
101     discharge but the defendant is successfully discharged from a rehabilitation program;
102          (b) at least three years have passed after the day on which the defendant is successfully
103     discharged from the rehabilitation program;
104          (c) the defendant is not convicted of a serious offense during the time period described
105     in Subsection (5)(b);
106          (d) there are no criminal proceedings pending against the defendant;
107          (e) the defendant is not on probation, on parole, or currently incarcerated for any other
108     offense;
109          (f) if the offense for which the reduction is sought is a violent felony, the prosecuting
110     attorney consents to the reduction; and
111          (g) the court finds that entering a judgment of conviction for a lower degree of offense
112     is in the interest of justice in accordance with Subsection (7).
113          (6) Upon a motion from the prosecuting attorney or the defendant, the court may enter
114     a judgment of conviction for a lower degree of offense than established by statute if:
115          (a) at least five years have passed after the day on which the defendant's probation or
116     parole for the conviction did not result in a successful discharge;
117          (b) the defendant is not convicted of a serious offense during the time period described
118     in Subsection (6)(a);
119          (c) there are no criminal proceedings pending against the defendant;
120          (d) the defendant is not on probation, on parole, or currently incarcerated for any other
121     offense;
122          (e) if the offense for which the reduction is sought is a violent felony, the prosecuting
123     attorney consents to the reduction; and
124          (f) the court finds that entering a judgment of conviction for a lower degree of offense
125     is in the interest of justice in accordance with Subsection (7).
126          (7) In determining whether entering a judgment of a conviction for a lower degree of
127     offense is in the interest of justice under Subsection (3), (4), (5), or (6):
128          (a) the court shall consider:
129          (i) the nature, circumstances, and severity of the offense for which a reduction is
130     sought;
131          (ii) the physical, emotional, or other harm that the defendant caused any victim of the
132     offense for which the reduction is sought; and
133          (iii) any input from a victim of the offense; and
134          (b) the court may consider:
135          (i) any special characteristics or circumstances of the defendant, including the
136     defendant's criminogenic risks and needs;
137          (ii) the defendant's criminal history;
138          (iii) the defendant's employment and community service history;
139          (iv) whether the defendant participated in a rehabilitative program and successfully
140     completed the program;
141          (v) any effect that a reduction would have on the defendant's ability to obtain or
142     reapply for a professional license from the Department of Commerce;
143          (vi) whether the level of the offense has been reduced by law after the defendant's
144     conviction;
145          (vii) any potential impact that the reduction would have on public safety; or
146          (viii) any other circumstances that are reasonably related to the defendant or the
147     offense for which the reduction is sought.
148          (8) (a) A court may only enter a judgment of conviction for a lower degree of offense
149     under Subsection (3), (4), (5), or (6) after:
150          (i) notice is provided to the other party;
151          (ii) reasonable efforts have been made by the prosecuting attorney to provide notice to
152     any victims; and
153          (iii) a hearing is held if a hearing is requested by either party.
154          (b) A prosecuting attorney is entitled to a hearing on a motion seeking to reduce a
155     judgment of conviction for a lower degree of offense under Subsection (3), (4), (5), or (6).
156          (c) In a motion under Subsection (3), (4), (5), or (6) and at a requested hearing on the
157     motion, the moving party has the burden to provide evidence sufficient to demonstrate that the
158     requirements under Subsection (3), (4), (5), or (6) are met.
159          (9) A court has jurisdiction to consider and enter a judgment of conviction for a lower
160     degree of offense under Subsection (3), (4), (5), or (6) regardless of whether the defendant is
161     committed to jail as a condition of probation or is sentenced to prison.
162          [(3) (a) Regardless of whether the defendant is committed to jail as a condition of
163     probation or sentenced to prison, the court has jurisdiction to consider and enter a judgment of
164     conviction for a lower degree of offense:]
165          [(i) after the defendant has been successfully discharged from probation or parole;]
166          [(ii) upon motion and notice to either party;]
167          [(iii) after reasonable effort has been made by the prosecuting attorney to provide
168     notice to any victims;]
169          [(iv) after a hearing if requested by either party; and]
170          [(v) if the court finds entering a judgment of conviction for the lower degree of offense
171     is in the interest of justice.]
172          [(b) In making the finding in Subsection (3)(a)(v), the court shall consider as a factor in
173     favor of granting the reduction, after the defendant's conviction, whether the level of the
174     offense has been reduced by law.]
175          [(c) In both the initial motion and at a requested hearing described in Subsection (3)(a),
176     the moving party has the burden to provide evidence sufficient to demonstrate:]
177          [(i) that the defendant has been successfully discharged from probation or parole; and]
178          [(ii) that the reduction is in the interest of justice.]
179          [(4)] (10) (a) An offense may be reduced only one degree [under this section, whether
180     the reduction is entered under Subsection (2) or (3)] under this section, unless the prosecuting
181     attorney specifically agrees in writing or on the court record that the offense may be reduced
182     two degrees.
183          (b) An offense may not be reduced under this section by more than two degrees.
184          [(5)] (11) This section does not preclude an individual from obtaining or being granted
185     an expungement of the individual's record in accordance with Title 77, Chapter 40a,
186     Expungement.
187          [(6)] (12) The court may not enter a judgment for a conviction for a lower degree of
188     offense under this section if:
189          (a) the reduction is specifically precluded by law; or
190          (b) [if] any unpaid balance remains on [court ordered] court-ordered restitution for the
191     offense for which the reduction is sought.
192          [(7)] (13) When the court enters a judgment for a lower degree of offense under this
193     section, the actual title of the offense for which the reduction is made may not be altered.
194          [(8)] (14) (a) An individual may not obtain a reduction under this section of a
195     conviction that requires the individual to register as a sex offender until the registration
196     requirements under Title 77, Chapter 41, Sex and Kidnap Offender Registry, have expired.
197          (b) An individual required to register as a sex offender for the individual's lifetime
198     under Subsection 77-41-105(3)(c) may not be granted a reduction of the conviction for the
199     offense or offenses that require the individual to register as a sex offender.
200          [(9)] (15) (a) An individual may not obtain a reduction under this section of a
201     conviction that requires the individual to register as a child abuse offender until the registration
202     requirements under Title 77, Chapter 43, Child Abuse Offender Registry, have expired.
203          (b) An individual required to register as a child abuse offender for the individual's
204     lifetime under Subsection 77-43-105(3)(c) may not be granted a reduction of the conviction for
205     the offense or offenses that require the individual to register as a child abuse offender.