Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 174 Second Substitute (2023GS)

Sponsor

Rep. Teuscher, J.

Final action

Governor Signed 3/14/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• modifies the requirements for reducing the degree of an offense for a conviction after the defendant is sentenced; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

CONVICTION REDUCTION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jordan D. Teuscher
Senate Sponsor: 
Todd D. Weiler
LONG TITLE
General Description:
This bill amends provisions related to the reduction of the degree of an offense for a
conviction.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ modifies the requirements for reducing the degree of an offense for a conviction
after the defendant is sentenced; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-3-402
, as last amended by Laws of Utah 2021, Chapter 293
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-3-402
 is amended to read:
76-3-402.
Conviction of lower degree of offense -- Procedure and limitations.
(1) As used in this section[
, "lower
]
:
(a) "Lower
 degree of offense" includes an offense for which:
[
(a)
] 
(i)
 a statutory enhancement is charged in the information or indictment that would
increase either the maximum or the minimum sentence; and
[
(b)
] 
(ii)
 the court removes the statutory enhancement in accordance with this section.
(b) "Minor regulatory offense" means the same as that term is defined in Section
77-40a-101
.
(c) (i) "Rehabilitation program" means a program designed to reduce criminogenic and
recidivism risks.
(ii) "Rehabilitation program" includes:
(A) a domestic violence treatment program, as that term is defined in Section
62A-2-101
;
(B) a residential, vocational, and life skills program, as that term is defined in Section
13-53-102
;
(C) a substance abuse treatment program, as that term is defined in Section 
62A-2-101
;
(D) a substance use disorder treatment program, as that term is defined in Section
62A-2-101
;
(E) a youth program, as that term is defined in Section 
62A-2-101
;
(F) a program that meets the standards established by the Department of Corrections
under Section 
64-13-25
;
(G) a drug court, a veterans court, or a mental health court certified by the Judicial
Council; or
(H) a program that is substantially similar to a program described in Subsections
(1)(c)(ii)(A) through (G).
(d) "Serious offense" means a felony or misdemeanor offense that is not a minor
regulatory offense or a traffic offense.
(e) "Traffic offense" means the same as that term is defined in Section 
77-40a-101
.
(f) (i) Except as provided in Subsection (1)(f)(ii), "violent felony" means the same as
that term is defined in Section 
76-3-203.5
.
(ii) "Violent felony" does not include an offense, or any attempt, solicitation, or
conspiracy to commit an offense, for:
(A) the possession, use, or removal of explosive, chemical, or incendiary devices under
Subsection 
76-10-306
(3), (5), or (6); or
(B) the purchase or possession of a dangerous weapon or handgun by a restricted
person under Section 
76-10-503
.
(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) Upon a motion from the prosecuting attorney or the defendant, the court may enter
a judgment of conviction for a lower degree of offense than established by statute:
(a) after the defendant is successfully discharged from probation or parole for the
conviction; and
(b) if the court finds that entering a judgment of conviction for a lower degree of
offense is in the interest of justice in accordance with Subsection (7).
(4) Upon a motion from the prosecuting attorney or the defendant, the court may enter
a judgment of conviction for a lower degree of offense than established by statute if:
(a) the defendant's probation or parole for the conviction did not result in a successful
discharge but the defendant is successfully discharged from probation or parole for a
subsequent conviction of an offense;
(b) (i) at least five years have passed after the day on which the defendant is sentenced
for the subsequent conviction; or
(ii) at least three years have passed after the day on which the defendant is sentenced
for the subsequent conviction and the prosecuting attorney consents to the reduction;
(c) the defendant is not convicted of a serious offense during the time period described
in Subsection (4)(b);
(d) there are no criminal proceedings pending against the defendant;
(e) the defendant is not on probation, on parole, or currently incarcerated for any other
offense;
(f) if the offense for which the reduction is sought is a violent felony, the prosecuting
attorney consents to the reduction; and
(g) the court finds that entering a judgment of conviction for a lower degree of offense
is in the interest of justice in accordance with Subsection (7).
(5) Upon a motion from the prosecuting attorney or the defendant, the court may enter
a judgment of conviction for a lower degree of offense than established by statute if:
(a) the defendant's probation or parole for the conviction did not result in a successful
discharge but the defendant is successfully discharged from a rehabilitation program;
(b) at least three years have passed after the day on which the defendant is successfully
discharged from the rehabilitation program;
(c) the defendant is not convicted of a serious offense during the time period described
in Subsection (5)(b);
(d) there are no criminal proceedings pending against the defendant;
(e) the defendant is not on probation, on parole, or currently incarcerated for any other
offense;
(f) if the offense for which the reduction is sought is a violent felony, the prosecuting
attorney consents to the reduction; and
(g) the court finds that entering a judgment of conviction for a lower degree of offense
is in the interest of justice in accordance with Subsection (7).
(6) Upon a motion from the prosecuting attorney or the defendant, the court may enter
a judgment of conviction for a lower degree of offense than established by statute if:
(a) at least five years have passed after the day on which the defendant's probation or
parole for the conviction did not result in a successful discharge;
(b) the defendant is not convicted of a serious offense during the time period described
in Subsection (6)(a);
(c) there are no criminal proceedings pending against the defendant;
(d) the defendant is not on probation, on parole, or currently incarcerated for any other
offense;
(e) if the offense for which the reduction is sought is a violent felony, the prosecuting
attorney consents to the reduction; and
(f) the court finds that entering a judgment of conviction for a lower degree of offense
is in the interest of justice in accordance with Subsection (7).
(7) In determining whether entering a judgment of a conviction for a lower degree of
offense is in the interest of justice under Subsection (3), (4), (5), or (6):
(a) the court shall consider:
(i) the nature, circumstances, and severity of the offense for which a reduction is
sought;
(ii) the physical, emotional, or other harm that the defendant caused any victim of the
offense for which the reduction is sought; and
(iii) any input from a victim of the offense; and
(b) the court may consider:
(i) any special characteristics or circumstances of the defendant, including the
defendant's criminogenic risks and needs;
(ii) the defendant's criminal history;
(iii) the defendant's employment and community service history;
(iv) whether the defendant participated in a rehabilitative program and successfully
completed the program;
(v) any effect that a reduction would have on the defendant's ability to obtain or
reapply for a professional license from the Department of Commerce;
(vi) whether the level of the offense has been reduced by law after the defendant's
conviction;
(vii) any potential impact that the reduction would have on public safety; or
(viii) any other circumstances that are reasonably related to the defendant or the
offense for which the reduction is sought.
(8) (a) A court may only enter a judgment of conviction for a lower degree of offense
under Subsection (3), (4), (5), or (6) after:
(i) notice is provided to the other party;
(ii) reasonable efforts have been made by the prosecuting attorney to provide notice to
any victims; and
(iii) a hearing is held if a hearing is requested by either party.
(b) A prosecuting attorney is entitled to a hearing on a motion seeking to reduce a
judgment of conviction for a lower degree of offense under Subsection (3), (4), (5), or (6).
(c) In a motion under Subsection (3), (4), (5), or (6) and at a requested hearing on the
motion, the moving party has the burden to provide evidence sufficient to demonstrate that the
requirements under Subsection (3), (4), (5), or (6) are met.
(9) A court has jurisdiction to consider and enter a judgment of conviction for a lower
degree of offense under Subsection (3), (4), (5), or (6) regardless of whether the defendant is
committed to jail as a condition of probation or is sentenced to prison.
[
(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)
] 
(10)
 (a) An offense may be reduced only one degree [
under this section, whether
the reduction is entered under Subsection (2) or (3)
] 
under this section
, 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)
] 
(11)
 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 40a,
Expungement.
[
(6)
] 
(12)
 The court may not enter 
a
 judgment for a conviction for a lower degree of
offense 
under this section
 if:
(a) the reduction is specifically precluded by law; or
(b) [
if
] any unpaid balance remains on [
court ordered
] 
court-ordered
 restitution for the
offense for which the reduction is sought.
[
(7)
] 
(13)
 When the court enters 
a
 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)
] 
(14)
 (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)
] 
(15)
 (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.