You have the right to appeal a sentencing decision made by a judge in any Utah criminal case. But filing an appeal is not always going to be the right decision. Taking to an experienced criminal defense attorney is the best way to determine the best strategy for moving forward.
Can I appeal a judge’s sentencing order following an order to show cause (OSC) where I admitted violating probation?
The case in question involved a conviction for a third-degree felony conviction for credit card fraud (unlawful use of a financial transaction card). The defendant was originally placed on probation, supervised by Adult Probation and Parole (AP&P), with a variety of probation conditions.
An OSC was filed by the probation department with several violations alleged. The defendant was given an opportunity to contest or challenge the allegations, but decided instead to admit two of the allegations in exchange for the prosecution’s agreement to strike (dismiss) the remaining allegations.
The judge heard arguments from both defense counsel and the prosecutor before making a final sentencing decision, but ultimately ordered that probation be revoked and that the original sentence of 0-5 years in prison be imposed.
Notice of Appeal – 30-Day (or 28-Day) Deadline
Constitutional principles of Due Process require that a person be given an opportunity to appeal a final sentencing order imposed in a criminal case. Procedurally, a notice of appeal must be filed no later than 30 days (28 days if the order is from a justice court) following the entry of that order by the court.
A sentencing order is considered a final order that can be appeal. When considering whether or not to appeal the order, it is important to remember the 30-day deadline for filing a notice of appeal with the district court.
To Appeal or Not to Appeal – Practical Matters to Consider
As a practical matter, it is likely that the full appeal process would take longer than the amount of time that a defendant would be likely to actually serve at the prison. On a 0-5 year sentence, there is no minimum time required. The Parole Board has authority to release and parole an individual as soon as they think it is appropriate.
In a case involving only property crimes (rather than a “person” crime with physical injuries), the sentencing matrix provided by the Utah Sentencing Commission would likely calculate actual time served in terms of months, not years.
For a person with a criminal history score placing them on level 1, level 2, or even level 3, and just a single third-degree felony property crime conviction, it is very possible that the Board of Pardons and Parole would release that person and place them on parole in less than a year – less time than most criminal appeals take to fully complete.
Finding an Attorney for Appeals
Appealing a sentencing order from the district court to either the Utah Court of Appeals or Utah Supreme Court is a complex process. Having good legal counsel is strongly advised. However, good attorneys may not be comfortable taking money from a client to file an appeal in a situation where the client would likely be released long before the appeal process was completed.
Consulting with an experienced criminal defense and appeals attorney is strongly advised.
