Utah Code

Utah Code § 76-3-402 (2026)

Conviction of lower degree of offense -- Procedure and limitations

✓ current as of May 2026

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As used in this section:

"Lower degree of offense" includes an offense for which:

a statutory enhancement is charged in the information or indictment that would increase either the maximum or the minimum sentence; and

the court removes the statutory enhancement in accordance with this section.

"Minor regulatory offense" means the same as that term is defined in Section 77-40a-101.

"Rehabilitation program" means a program designed to reduce criminogenic and recidivism risks.

"Rehabilitation program" includes:

a domestic violence treatment program, as that term is defined in Section 26B-2-101;

a residential vocational or life skills program, as that term is defined in Section 13-53-102;

a substance abuse treatment program, as that term is defined in Section 26B-2-101;

a substance use disorder treatment program, as that term is defined in Section 26B-2-101;

a youth program, as that term is defined in Section 26B-2-101;

a program that meets the standards established by the Department of Corrections under Section 64-13-25;

a drug court, a veterans court, or a mental health court certified by the Judicial Council; or

a program that is substantially similar to a program described in Subsections (1)(c)(ii)(A) through (G).

"Serious offense" means a felony or misdemeanor offense that is not a minor regulatory offense or a traffic offense.

"Traffic offense" means the same as that term is defined in Section 77-40a-101.

"Violent felony" means, except as provided in Subsection (1)(f)(ii), the same as that term is defined in Section 76-3-203.5.

"Violent felony" does not include an offense, or any attempt, solicitation, or conspiracy to commit an offense, for:

the purchase or possession of a dangerous weapon or firearm by a restricted person under Section 76-11-305 or 76-11-306;

unlawful conduct involving an explosive, chemical, or incendiary device under Subsection 76-15-210(2)(a); or

unlawful conduct involving an explosive, chemical, or incendiary part under Section 76-15-211.

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:

takes into account:

the nature and circumstances of the offense of which the defendant was found guilty; and

the history and character of the defendant;

gives any victim present at the sentencing and the prosecuting attorney an opportunity to be heard; and

concludes that the degree of offense established by statute would be unduly harsh to record as a conviction on the record for the defendant.

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:

after the defendant is successfully discharged from probation or parole for the conviction; and

if the court finds, in accordance with Subsection (8), that entering a judgment of conviction for a lower degree of offense is in the interest of justice.

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:

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;

at least five years have passed after the day on which the defendant is sentenced for the subsequent conviction; or

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;

the defendant is not convicted of a serious offense during the time period described in Subsection (4)(b);

there are no criminal proceedings pending against the defendant;

the defendant is not on probation, on parole, or currently incarcerated for any other offense;

if the offense for which the reduction is sought is a violent felony, the prosecuting attorney consents to the reduction; and

the court finds, in accordance with Subsection (8), that entering a judgment of conviction for a lower degree of offense is in the interest of justice.

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:

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;

at least three years have passed after the day on which the defendant is successfully discharged from the rehabilitation program;

the defendant is not convicted of a serious offense during the time period described in Subsection (5)(b);

there are no criminal proceedings pending against the defendant;

the defendant is not on probation, on parole, or currently incarcerated for any other offense;

if the offense for which the reduction is sought is a violent felony, the prosecuting attorney consents to the reduction; and

the court finds, in accordance with Subsection (8), that entering a judgment of conviction for a lower degree of offense is in the interest of justice.

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:

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;

the defendant is not convicted of a serious offense during the time period described in Subsection (6)(a);

there are no criminal proceedings pending against the defendant;

the defendant is not on probation, on parole, or currently incarcerated for any other offense;

if the offense for which the reduction is sought is a violent felony, the prosecuting attorney consents to the reduction; and

the court finds, in accordance with Subsection (8), that entering a judgment of conviction for a lower degree of offense is in the interest of justice.

Upon a joint motion from the prosecuting attorney and the defendant, the court may enter a judgment of conviction for a lower degree of offense than established by statute if:

the defendant, within one year after sentencing, provides substantial assistance in the criminal investigation, arrest, or prosecution of another individual; and

the court finds, in accordance with Subsection (8), that entering a judgment of conviction for a lower degree of offense is in the interest of justice and public safety.

In determining whether the defendant has provided substantial assistance under Subsection (7)(a)(i), the court shall consider:

the significance and usefulness of the defendant's assistance, taking into account the prosecuting attorney's evaluation of the assistance rendered;

the truthfulness, completeness, and reliability of information or testimony provided by the defendant;

the nature and extent of the defendant's assistance;

any injury suffered or any danger or risk of injury to the defendant or the defendant's family resulting from the defendant's assistance;

the timeliness of the defendant's assistance; and

any other factor the court considers relevant.

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), (6), or (7):

the court shall consider:

the nature, circumstances, and severity of the offense for which a reduction is sought;

the physical, emotional, or other harm that the defendant caused any victim of the offense for which the reduction is sought; and

any input from a victim of the offense; and

the court may consider:

any special characteristics or circumstances of the defendant, including the defendant's criminogenic risks and needs;

the defendant's criminal history;

the defendant's employment and community service history;

whether the defendant participated in a rehabilitative program and successfully completed the program;

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;

whether the level of the offense has been reduced by law after the defendant's conviction;

any potential impact that the reduction would have on public safety; or

any other circumstances that are reasonably related to the defendant or the offense for which the reduction is sought.

A court may only enter a judgment of conviction for a lower degree of offense under Subsection (3), (4), (5), (6), or (7) after:

notice is provided to the other party;

reasonable efforts have been made by the prosecuting attorney to provide notice to any victims; and

a hearing is held if a hearing is requested by either party.

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), (6), or (7).

In a motion under Subsection (3), (4), (5), (6), or (7) 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), (6), or (7) are met.

If a defendant files a motion under this section, the prosecuting attorney shall respond to the motion within 35 days after the day on which the motion is filed with the court.

A court has jurisdiction to consider and enter a judgment of conviction for a lower degree of offense under Subsection (3), (4), (5), (6), or (7) regardless of whether the defendant is committed to jail as a condition of probation or is sentenced to prison.

An offense may be reduced only one degree under this section, unless the prosecuting attorney specifically agrees in writing or on the court record that the offense may be reduced two degrees.

An offense may not be reduced under this section by more than two degrees.

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 of Criminal Records.

The court may not enter a judgment for a conviction for a lower degree of offense under this section if:

the reduction is specifically precluded by law; or

any unpaid balance remains on court-ordered restitution for the offense for which the reduction is sought.

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.

An individual may not obtain a reduction under this section of a conviction that requires the individual to register as a sex offender, kidnap offender, or child abuse offender under Section 53-29-202 until the registration requirements under Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, have expired.

An individual required to register as a sex offender, kidnap offender, or child abuse offender under Section 53-29-202 and required to register for the individual's lifetime as described in Subsection 53-29-203(1)(b), may not be granted a reduction of the conviction for the offense or offenses that require the individual to register as a sex offender, kidnap offender, or child abuse offender.

Notes of Decisions

Cited in 71 cases (4 in the last 5 years), 1980–2026 · leading case: State v. Barrett, 2005 UT 88 (Utah 2005).

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State v. Barrett, 2005 UT 88 (Utah 2005). · cites it 9× “¶ 28 To determine whether the reductions undertaken by the district court were permissible, we must interpret two sections of the Utah Code. The first provision grants judges the discretion to reduce the degree of the charged offense “to the next lower degree” for sentencing…”

State v. Legg, 2018 UT 12 (Utah 2018). · cites it 7× “Legg contends that "the state regularly refuses plea offers or offers of probation to defendants with probation revocations.”

State v. Shipler, 869 P.2d 968 (Utah Ct. App. 1994). · cites it 29× “Shipler appeals from an order denying her motion to reduce her conviction to a misdemeanor under Utah Code Ann. § 76-3-402 (2)(b) (1990). We affirm.”

State v. Perea, 2013 UT 68 (Utah 2013). · cites it 7× “UTAH CODE § 76-3-402(1).20 And we can find no authority 19 See also State v.”

State v. Hon. Boyden, 2019 UT 11 (Utah 2019). · cites it 6× “¶6 At sentencing, the district court reduced the judgment of conviction on the first offense to a third degree felony, applying Utah Code section 76-3-402. 3 The district court then ordered that Bela Fritz serve a term of imprisonment of up to five years for *740 each offense,…”

State v. Nielsen, 2014 UT 10 (Utah 2014). · cites it 4× “But although Nielsen had been charged and convicted on a felony assault charge, the conviction had been statutorily reduced to a class A misdemeanor under Utah Code section 76-3-402. The jury received a copy of the criminal record and concluded that Nielsen's crime was a felony…”

State v. Oseguera, 267 P.3d 302 (Utah Ct. App. 2011). · cites it 24× “" Oseguera obtained a reduction of the level of his offense pursuant to Utah Code section 76-3-402(2) after his completion of probation, see Utah Code Ann. § 76-3-402 (2) (2008), and later filed the motion to clarify seeking a reduction of his original sentence.”

State v. Lebeau, 2014 UT 39 (Utah 2014). · cites it 5× “, whether to place a defendant on probation and/or suspend a prison sentence, whether to order that sentences on multiple offenses be served concurrently or consecutively, and whether to enter a conviction for a lower category of offense under Utah Code section 76-3-402. See…”

State v. Bagshaw, 836 P.2d 1384 (Utah Ct. App. 1992). · cites it 22× “We conclude that the court erred in its interpretation and application of Utah Code Ann. § 76-3-402 (1990), in reducing defendant’s two felony convictions to class A misdemeanor convictions instead of to class B misdemeanor convictions.”

State v. Holt, 2010 UT App 138 (Utah Ct. App. 2010). · cites it 14× “2006) (prohibit, ing a reduction for offenses that require a *832 sex offender to register but not specifically addressing sexual exploitation of a minor); id. § 76-5a-3 history & amendment notes (Supp.”

State v. Johnson, 290 P.3d 21 (Utah 2012). · cites it 9× “The plea agreement contained several promises by the State, including that the State would "affirmatively recommend no prison" and would "not oppose a [Utah Code section 76-3-402] motion [to reduce the degree of convictions] on the felony and misdemeanor charges at the end of…”

State v. Martinez, 2001 UT 12 (Utah 2001). · cites it 4× “" T7 A week after defendant's guilty plea, defense counsel filed a motion requesting that defendant's conviction be reduced from first to second degree murder under section 76-3-402 of the Utah Code. On February 24, 1997, the prosecutor sent defense counsel a memo informing…”

Show all 71 citing cases →

— Utah Code § 76-3-402(1) — 16 cases

State v. Perea, 2013 UT 68 (Utah 2013). “UTAH CODE § 76-3-402(1).20 And we can find no authority 19 See also State v.”

State v. Hon. Boyden, 2019 UT 11 (Utah 2019). “¶6 At sentencing, the district court reduced the judgment of conviction on the first offense to a third degree felony, applying Utah Code section 76-3-402. 3 The district court then ordered that Bela Fritz serve a term of imprisonment of up to five years for *740 each offense,…”

State v. Barrett, 2005 UT 88 (Utah 2005). “¶ 28 To determine whether the reductions undertaken by the district court were permissible, we must interpret two sections of the Utah Code. The first provision grants judges the discretion to reduce the degree of the charged offense “to the next lower degree” for sentencing…”

State v. Brooks, 631 P.2d 878 (Utah 1981).

State v. King, 2010 UT App 396 (Utah Ct. App. 2010).

— Utah Code § 76-3-402(2) — 9 cases

State v. Oseguera, 267 P.3d 302 (Utah Ct. App. 2011). “" Oseguera obtained a reduction of the level of his offense pursuant to Utah Code section 76-3-402(2) after his completion of probation, see Utah Code Ann. § 76-3-402 (2) (2008), and later filed the motion to clarify seeking a reduction of his original sentence.”

State v. Lebeau, 2014 UT 39 (Utah 2014). “, whether to place a defendant on probation and/or suspend a prison sentence, whether to order that sentences on multiple offenses be served concurrently or consecutively, and whether to enter a conviction for a lower category of offense under Utah Code section 76-3-402. See…”

State v. Legg, 2018 UT 12 (Utah 2018). “Legg contends that "the state regularly refuses plea offers or offers of probation to defendants with probation revocations.”

State v. Bagshaw, 836 P.2d 1384 (Utah Ct. App. 1992). “We conclude that the court erred in its interpretation and application of Utah Code Ann. § 76-3-402 (1990), in reducing defendant’s two felony convictions to class A misdemeanor convictions instead of to class B misdemeanor convictions.”

State v. Jones, 657 P.2d 1263 (Utah 1982).

— Utah Code § 76-3-402(2)(a) — 1 case

State v. Legg, 2018 UT 12 (Utah 2018). “Legg contends that "the state regularly refuses plea offers or offers of probation to defendants with probation revocations.”

— Utah Code § 76-3-402(2)(a)(i) — 1 case

State v. Legg, 2018 UT 12 (Utah 2018). “Legg contends that "the state regularly refuses plea offers or offers of probation to defendants with probation revocations.”

— Utah Code § 76-3-402(2)(b) — 3 cases

State v. Shipler, 869 P.2d 968 (Utah Ct. App. 1994). “Shipler appeals from an order denying her motion to reduce her conviction to a misdemeanor under Utah Code Ann. § 76-3-402 (2)(b) (1990). We affirm.”

State v. Holt, 2010 UT App 138 (Utah Ct. App. 2010). “2006) (prohibit, ing a reduction for offenses that require a *832 sex offender to register but not specifically addressing sexual exploitation of a minor); id. § 76-5a-3 history & amendment notes (Supp.”

— Utah Code § 76-3-402(2)(v) — 1 case

State v. Cochran, 2019 UT App 92 (Utah Ct. App. 2019).

— Utah Code § 76-3-402(3) — 2 cases

State v. Walker, 2002 UT App 290 (Utah Ct. App. 2002).

— Utah Code § 76-3-402(3)(a) — 1 case

State v. Carter, 2015 UT App 109 (Utah Ct. App. 2015).

— Utah Code § 76-3-402(3)(a)(v) — 1 case

State v. Brotherson, 2020 UT App 97 (Utah Ct. App. 2020).

— Utah Code § 76-3-402(6) — 1 case

— Utah Code § 76-3-402(7)(a) — 1 case

State v. Johnson, 290 P.3d 21 (Utah 2012). “The plea agreement contained several promises by the State, including that the State would "affirmatively recommend no prison" and would "not oppose a [Utah Code section 76-3-402] motion [to reduce the degree of convictions] on the felony and misdemeanor charges at the end of…”

— Utah Code § 76-3-402(b) — 1 case

— Utah Code § 76-3-402(c) — 1 case

State v. Theison, 709 P.2d 307 (Utah 1985).

— Utah Code § 76-3-402(l) — 1 case

State v. Perea, 2013 UT 68 (Utah 2013). “UTAH CODE § 76-3-402(1).20 And we can find no authority 19 See also State v.”

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