Utah Code » Title 76, Chapter 3 — Punishments; part 76-3-4 — Limitations and Special Provisions on Sentences
Utah Code

Utah Code § 76-3-406 (2026)

Crimes for which probation, suspension of sentence, lower category of offense, or hospitalization may not be granted

✓ current as of May 2026
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As used in this section, "attempted child sexual offense" means an attempt to commit a felony that is:
rape of a child as described in Section 76-5-402.1;
object rape of a child as described in Section 76-5-402.3;
sodomy on a child as described in Section 76-5-403.1; or
aggravated sexual abuse of a child as described in Section 76-5-404.3.
Except as provided in Subsection (3), a court may not grant probation, suspend the execution or imposition of a sentence, enter a judgment for a lower category of offense, or order hospitalization, if the effect of which would in any way shorten the prison sentence for:
an actor who commits a capital felony or a first degree felony, or attempts to commit a capital felony or a first degree felony, that is:
aggravated child abuse as described in Section 76-5-109.2;
child torture as described in Section 76-5-109.4;
aggravated murder as described in Section 76-5-202;
murder as described in Section 76-5-203;
child kidnapping as described in Section 76-5-301.1;
aggravated kidnapping as described in Subsection 76-5-302(3)(b);
rape as described in Subsection 76-5-402(3)(b), (3)(c), (3)(d), or (4);
rape of a child as described in Section 76-5-402.1;
object rape as described in Subsection 76-5-402.2(3)(b), (3)(c), (3)(d), or (4);
object rape of a child as described in Section 76-5-402.3;
forcible sodomy as described in Subsection 76-5-403(3)(b), (3)(c), (3)(d), or (4);
sodomy on a child as described in Section 76-5-403.1;
forcible sexual abuse as described in Subsection 76-5-404(3)(b)(i) or (ii);
aggravated sexual abuse of a child as described in Section 76-5-404.3; or
aggravated sexual assault as described in Section 76-5-405; or
an offense for which the penalty has been increased under Section 76-3-407, Repeat and habitual sex offenders.
Except as provided in Subsection (3)(b), a court may suspend the execution or imposition of a prison sentence for an actor who is convicted of an attempt to commit a felony described in Subsection (2)(a) if the court:
makes a finding on the record that:
details why it is in the interests of justice not to execute or impose the prison sentence; and
the actor does not pose a significant safety risk to the victim of the attempted crime or the general public; and
orders the actor to complete the terms and conditions of probation that is supervised by the Department of Corrections.
If a court suspends a sentence for an attempted child sexual offense the court shall follow the provisions described in Section 76-5-406.5.
Except for an offense before the district court in accordance with Section 80-6-502 or 80-6-504, the provisions of this section do not apply if the sentencing court finds that the actor:
was under 18 years old at the time of the offense; and
could have been adjudicated in the juvenile court but for the delayed reporting or delayed filing of the information.
Except as provided in Subsection 77-16a-103(6) or (7), a court may not grant probation, suspend the execution or imposition of a sentence, enter a judgment for a lower category of offense under Section 76-3-402, or order hospitalization under Section 76-3-201 or 77-18-105 or Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition, if the court is prohibited from doing so by this section.
Notes of Decisions
Cited in 17 cases (1 in the last 5 years), 1986–2026 · leading case: State v. Bishop, 717 P.2d 261 (Utah 1986).
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State v. Bishop, 717 P.2d 261 (Utah 1986). · cites it 12× “1 infringes the separation of powers provision of Article V, section 1 of the Utah Constitution because the minimum mandatory sentencing statute removes the power of trial judges to suspend sentences in violation of inherent prerogatives of the judiciary.”
State v. Johnson, 784 P.2d 1135 (Utah 1989). · cites it 4× “, Utah Code Ann. § 76-3-406 (1) (Supp. 1989) (probation, suspension, and lower category of offense shall not be granted for certain listed attempt crimes); see also Utah Code Ann.”
State v. Rimmasch, 775 P.2d 388 (Utah 1989). · cites it 2× “See Utah Code Ann. §§ 76-3-406 , -407, -408 (Supp.”
State v. Babbel, 813 P.2d 86 (Utah 1991). · cites it 4× “” Section 76-3-406(1) provided that, with certain exceptions, "the court shall not enter a judgment for a lower category of offense ... the effect of which would in any way shorten the prison sentence for any person who commits" certain first degree felonies involving minimum…”
State v. Welborn, 2012 UT App 5 (Utah Ct. App. 2012). · cites it 8× “Utah Code Ann. § 76-3-406 (12) (Supp.2011) (emphasis added).”
State v. Gibbons, 779 P.2d 1133 (Utah 1989). · cites it 3× “Specifically, he contends that the trial court misinterpreted Utah Code Ann. § 76-3-406 (Supp.1989), which states: (1) Notwithstanding Sections 76-3-201 and 77-18-1, and Chapter 16, Title 77, and any other provision of law, except as provided in Section 76-5-^06.”
State v. Martinez, 2001 UT 12 (Utah 2001). · cites it 2× “Utah Code Ann. § 76-3-406 (1999). Cella said that he told defendant that he could either proceed with sentencing or ask the court to permit him to withdraw his guilty plea.”
State v. Johnson, 856 P.2d 1064 (Utah 1993). · cites it 2× “5 states: (1) In a case involving rape of a child, attempted rape of a child, or sodomy upon a child involving the actor’s genitals and the mouth or anus of the child, where the defendant is the victim’s parent, stepparent, adoptive parent, or legal guardian who has lived in the…”
State v. Nuttall, 861 P.2d 454 (Utah Ct. App. 1993). · cites it 2× “See Utah Code Ann. § 76-3-406 (1) (1990). Thus, even if the trial court did err, by looking to defendant's "cognitive abilities” rather than his "developmental disabilities,” it was harmless error.”
Herman v. State, 821 P.2d 457 (Utah 1991). · cites it 4× “Plaintiffs contend, however, that others within the class of persons who have been convicted of these crimes or who have pleaded guilty have been granted probation and have received suspended sentences or reduction of the offense to a lower category, in violation of Utah Code…”
State v. Guadarrama, 2015 UT App 77 (Utah Ct. App. 2015). · cites it 5× “The rape-of-a-child statute provides, "Imprisonment under this section is mandatory in accordance with Section 76-3-406." Utah Code Ann. § 76-5-402.”
State v. Ricks, 2013 UT App 238 (Utah Ct. App. 2013). “§ 76-3-406(2). 4 . A semiautomatic pistol with no shell in firing position is not "loaded" as that term is defined in one statute inapplicable here.”
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— Utah Code § 76-3-406(1) — 2 cases
State v. Babbel, 813 P.2d 86 (Utah 1991). “” Section 76-3-406(1) provided that, with certain exceptions, "the court shall not enter a judgment for a lower category of offense ... the effect of which would in any way shorten the prison sentence for any person who commits" certain first degree felonies involving minimum…”
State v. Cuttler, 2018 UT App 171 (Utah Ct. App. 2018).
— Utah Code § 76-3-406(2) — 1 case
State v. Ricks, 2013 UT App 238 (Utah Ct. App. 2013). “§ 76-3-406(2). 4 . A semiautomatic pistol with no shell in firing position is not "loaded" as that term is defined in one statute inapplicable here.”
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