402 Reductions in Utah – FAQ

Utah Code section 76-3-402 gives courts the authority to reduce the level of a conviction, even after a sentence has been fully served or on completion of probation or parole. This kind of reduction can help restore expungement eligibility or can be used to turn a felony conviction into a misdemeanor.

Clearing Your Record – Answers to Important Questions

Here are some quick answers to questions we commonly hear about 402 reductions in Utah. If you are working to clear your criminal record, a good attorney can make a real difference. Contact us directly to learn how we can help.

Can a second degree felony be reduced to a misdemeanor?

Section 402 allows a court to reduce the level of a conviction by up to a maximum of two steps. A third degree felony is only one step away from being a misdemeanor. But a second degree felony requires a two-step reduction to reach the misdemeanor level.

To have authority to grant a two-step reduction, the motion has to have the agreement (aka “stipulation”) of the prosecutor. This agreement can be given either in writing or on the record in open court. But without the prosecutor’s consent, the judge only has authority to reduce the level of the conviction by one step.

Can a conviction requiring registration still be reduced under section 402?

Subsection 14 of the statute governs eligibility for reducing the level of a conviction that requires registration as a sex offender or kidnap offender, or on Utah’s child abuse offender registry.

Under this part of the statute, a court cannot reduce a conviction requiring registration until after the registration period and requirements have expired. Convictions requiring lifetime registration are not eligible for a 402 reduction. However, convictions for other non-registerable offenses may still be eligible.

Can a reduction order change the nature or name of the conviction?

Section 402 authorizes a reduction in the level of the offense, but does not authorize the court to change or revise the title or name of the offense, or the code section under which the original conviction was entered.

For example, a third-degree felony conviction for aggravated assault could be reduced by one step to make it a class A misdemeanor. The conviction would still be for “aggravated assault” but the conviction would no longer be considered a “violent felony.” A reduction like this could also be used to restore expungement eligibility. (Note that under more recent amendments to section 402, reducing a violent felony conviction also requires the consent of the prosecutor.)

Can I get a reduction if I still owe money on the case?

Subsection 12 prohibits a reduction if court-ordered restitution is still owed “for the offense for which reduction is sought.” Although the statute does not explicitly require that full restitution on all counts or offenses in the case, the court is much more likely to grant a reduction if all financial obligations have been satisfied.

Can my conviction be reduced even if went to jail or prison?

Previous versions of section 402 required successful completion of “probation” – a requirement that excluded anyone who went to prison even if they had been successful on parole. This distinction was considered to be jurisdictional, since the trial court was viewed as losing jurisdiction over the case once a defendant was sentenced to prison.

However, more recent versions of the statute specifically provide that the original convicting court “has jurisdiction to enter a judgment of conviction for a lower degree of offense… regardless of whether the defendant is committed to jail as a condition of probation or is sentenced to prison.”

This change to the statute has opened doors for many people who would have been ineligible for relief under the old statute.