Utah 402 Reductions - Stipulated Motions
Does a prosecutor's stipulation guarantee that the judge will
grant a 402 reduction motion?
two-step reduction under Utah Code 76-3-402 requires a prosecutor's
stipulation (agreement). But even with the stipulation of a prosecutor,
either a one-step or a two-step reduction still requires that the judge
must determine that the reduction is in the interest of justice before
the 402 motion can be granted.
may be useful in reducing a felony
conviction to a
or in some situations may restore expungement
If you are seeking a 402 reduction, an experienced criminal attorney
can help present your case to the court in the best light, improving
your chances of success.
Based in Salt Lake City, criminal
provides legal services on cases throughout Utah. Contact
us today to
arrange for an initial consultation.
What is the standard for obtaining a 402 reduction in Utah?
In order to obtain a 402 reduction following the successful completion
of probation, the defendant must demonstrate that it is "in the
interest of justice" to grant the requested reduction. This standard is
by the court's as being discretionary - meaning that the judge
may consider the specific facts of the case, the performance of the
defendant while on probation, activities of the defendant since
completing probation, and other relevant factors and then determine
whether the reduction is appropriate.
A stipulation is not necessarily enough to guarantee a
successful 402 reduction. In the case of State v. Quintana (48 P.3d
249), the Court
of Appeals reversed the district court and remanded the case with
instructions to that the prosecutor should be compelled to comply with
a prior agreement to recommend (or
stipulate to) the requested two-step 402 reduction. But the
Court of Appeals noted that on remand and even with the
prosecution's recommendation for the two-step reduction, the trial
court would still have discretion to either grant or deny the 402
The appellate courts give the district court "wide latitude
and discretion" in determining 402 reduction questions. See,
State v. Boyd (25 P.3d 985) and State v. Holt (233 P.3d 828). If a 402
reduction motion is not successful in the district court, a defendant
has the right to request a review on appeal. But it
is generally an
uphill fight to show an abuse of discretion by the district court on
appeal. A defendant will be better off filing a strong initial motion
with the court rather than planning on challenging the court's decision
In filing a 402 reduction motion, a defendant should consider
presenting information or evidence relating to positive performance
while on probation, efforts toward a successful rehabilitation,
counseling or treatment engaged in during probation or since the
completion of probation, positive community
involvements, work history and performance, volunteer work, family,
etc. A cookie-cutter 402 reduction form motion cannot serve as a
replacement for competent legal advice and representation. Because a
successful 402 reduction motion involves a discretionary review by the
judge, you must be prepared to present a persuasive case.
Benefits of a Successful 402 Reduction Motion
One of the most common reasons a person may seek a 402 reduction is to
have a felony conviction reduced to the misdemeanor level. This kind of
reduction can help restore rights that were lost as a result of having
a felony criminal record.
A 402 reduction may also be used to help restore a person's eligibility
for expungement. Under the Utah Expungement Act, eligibility is based
on both the number and level of criminal convictions on a person's
criminal record. For example, four class B misdemeanors from four
criminal episodes will result in a denial of expungement eligibility.
But if one of those class B misdemeanors is reduced to a class C
misdemeanors, eligibility may be restored. If a minor misdemeanor
conviction can be reduced to the infraction level, then that conviction
will no longer count against expungement eligibility at all.
A 402 reduction can also shorten the waiting period for expungement
eligibility. For a single felony conviction, a seven-year waiting
period is required. Reducing that felony to a class A misdemeanor
reduces the waiting period by two years.
Finding a Criminal Defense Attorney for a 402 Reduction
you are seeking a reduction in the level of your conviction under Utah
Code 76-3-402, the assistance of an experienced criminal attorney can
help give you the best chance of success. Utah criminal
Howard has substantial experience
in obtaining 402
reductions for a wide variety of felony and misdemeanor charges. Based
in Salt Lake City, Mr. Howard provides legal services to clients
today to arrange
for an initial consultation.
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