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Getting It Right - 402 Reductions, Violent Felonies, and Prosecutors

Posted by Utah Criminal Lawyer Stephen Howard - May 31, 2016

Short post here. But I wanted to take a minute to correct some misinformation regarding 402 reductions and violent felonies that seems to be circulating, even among some attorneys.

I came across the first bit of incorrect information while looking at another criminal defense lawyer's website that addressed the benefits of getting a 402 reduction. Much of the material on this attorney's website was accurate. But he mistakenly stated that a 402 reduction can not be granted to a person who has been convicted of a violent felony. This is simply wrong.

The second bit of bad information came from a prospective client who contacted me with questions about whether he could get a 402 reduction. He had been told by the attorney who originally represented him on the case that because the prosecutor had not agreed to the 402 reduction as part of the original plea negotiations, he was not eligible for a reduction. This also is wrong.

Here is a brief overview of these two topics. If you have specific questions or are seeking a 402 reduction, please contact us today.

Reductions of Violent Felony Convictions under Utah Code 76-3-402

There is a statutory prohibition against expungements when a defendant has been convicted of a crime classified as a "violent felony" under the Utah criminal code. But there is no such prohibition for a 402 reduction under Utah Code 76-3-402. Convictions that require registry on the Utah sex offender registry are not eligible for a reduction in the level of the conviction. But other ordinary "violent felony" convictions can often be reduced to the misdemeanor level under section (2) of Utah Code 76-3-402.

We have successfully filed 402 reduction motions for clients with violent felony convictions in cases such as felony aggravated assault, felony robbery (originally filed as aggravated robbery), and felony arson - just to name a few off the top of my head. In some cases, we have even obtained prosecutor stipulations for a 2-step reduction, taking a second-degree felony down to the misdemeanor level. And for many of these clients, after the violent felony conviction was reduced to the misdemeanor level, we have successfully petitioned the court to expunge the entire case from their records.

A 402 reduction can be a critical strategy piece in clearing a person's criminal record. Utah's expungement eligibility rules explicitly prohibit the expungement of any violent felony (as defined by statute). But if that violent felony conviction can be reduced to a misdemeanor under Utah Code 76-3-402, the benefits are two-fold. The first benefit is immediate - the charge no longer has to be reported as a "felony" conviction. The second benefit may still take some time to achieve, but it is perhaps even more important - expungement eligibility can be restored, enabling the person to regain a "clean" record.

402 Reductions without the Prosecutor's Agreement

There is one circumstance when the prosecutor's agreement is required under Utah Code 76-3-402 - when the person requesting a reduction needs a two-step reduction. Two common scenarios requiring a two-step reduction would be when a person has a second degree felony conviction and needs the two-step reduction to make the conviction a misdemeanor, or when a person has a class B misdemeanor conviction and needs the two-step reduction to make the charge an infraction. Under such circumstances, the prosecutor must agree either in writing or on the record in court to the two step reduction.

But even when seeking a two-step reduction, there is no statutory requirement that the prosecutor must have first agreed to a 402 reduction as part of the original plea negotiations. It is always helpful if the prosecutor will agree (stipulate) to the 402 reduction motion. But unless a two-step reduction is requested, the prosecutor's agreement is not necessary.

Finding a Criminal Defense Lawyer in Utah

Utah Criminal Lawyer in Salt Lake CityDo not let the fact that you may have been convicted of a violent felony stop you from filing for a 402 reduction. And in most circumstances, the judge can grant the requested reduction with or without the prosecutor's agreement.

If you have a criminal record that you would like to clear, contact us today to see how we can help you. We have successfully helped clients through the processes of 402 reduction, expungement, and pardon. Call today - we can usually tell you over the phone if you qualify.


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Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

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