What Is a 402 Sentence Reduction?
Utah law provides a method to reduce the level of a criminal conviction without changing the name of that conviction. For instance, Possession with Intent to Distribute Marijuana is usually a 3rd Degree Felony. However, using the 402 reduction statute, that same conviction can be reduced to a Misdemeanor A (or sometimes even a Misdemeanor B). You can read the full text of the law below.
Why Would I Want a 402 Sentence Reduction?
LOWERING YOUR MAXIMUM PENALTY. The level of offense defines how long the judge can sentence you for that offense, and the maximum fine. For instance the maximum penalties for a 3rd Degree Felony are 0-5 years in prison and $5,000, but the maximum penalties for a Misdemeanor A are 1 year in jail and up to $2,500.
CLEANING UP YOUR RECORD. There are also reasons to get a sentence reduction even after sentencing. Lowering a felony level conviction to misdemeanor level means you are no longer “a convicted felon.” Which might allow you to qualify for certain jobs and benefits. Lowering the level of conviction can also allow you to qualify for expungement when you wouldn’t otherwise, or qualify quicker than you would otherwise. Expunging a record seals it from public view, and often helps with job applications, school, and even housing.
RESTORING YOUR RIGHTS. Some civil rights are taken away when you’re been convicted of certain crimes, and lowering the level of offense may restore those rights.
Do I Qualify for a 402 Sentence Reduction?
All offenses are eligible for a 402 sentence reduction (except for certain sexual and kidnapping offenses), but the judge has to agree to it. The level can either be reduced at the time of sentencing (usually as a result of a bargain with the prosecutor), or afterwards. To be eligible for reduction after sentencing, you must have been given probation and successfully completed that probation. If you’re unsure whether you qualify, you can contact me and I will be glad to look up your case and talk to you about it.
How Do I Get a 402 Sentence Reduction?
As discussed above, 402 reductions that happen at the time of sentencing are usually based on bargains with the prosecutor. To request a reduction after sentencing, you must file a motion with the court and with the prosecutor. The prosecutor will attempt to contact any victims in the case, and either the victims or the prosecutor may object to your request and ask for a hearing. It’s your job to convince the judge that the reduction is “in the interests of justice.” Obviously, it’s good to have an attorney help you with the process.
How Much Does It Cost?
Unlike an expungement, there is no filing fee to ask for a 402 reduction. However, it can be a complicated process and it helps to have an attorney assist you. If you have an attorney working with you on your criminal case he or she can help you look into a 402 reduction during the sentencing phase of your case. If you’re applying for a 402 reduction after your probation, you might need to hire another attorney. I currently work on post-sentencing 402 reductions for a flat fee of $500–$600 (depending on court and type of case). That includes drafting your motion, discussing it with the prosecutor’s office, and filing it in court. If the prosecutor does not object to the motion, that should be all it takes. If the prosecutor objects, there is an additional $350–$500 fee to cover drafting a response, and appearing to argue your case during a hearing, if one is required. The split fee does make the payment slightly more complicated, but I think it’s more fair to you, because you’re only paying for the work I actually do. Contact me to discuss your case during a free initial consultation.
Text of the 402 Statute
(1) If at the time of sentencing the court, having regard to the nature and circumstances of the offense of which the defendant was found guilty and to the history and character of the defendant, and after having given any victims present at the sentencing and the prosecuting attorney an opportunity to be heard, concludes it would be unduly harsh to record the conviction as being for that degree of offense established by statute, the court may enter a judgment of conviction for the next lower degree of offense and impose sentence accordingly.
(2) If the court suspends the execution of the sentence and places the defendant on probation, whether or not the defendant is committed to jail as a condition of probation, the court may enter a judgment of conviction for the next lower degree of offense:
(a) after the defendant has been successfully discharged from probation;
(b) upon motion and notice to the prosecuting attorney;
(c) after reasonable effort has been made by the prosecuting attorney to provide notice to any victims;
(d) after a hearing if requested by either party under Subsection (2)(c); and
(e) if the court finds entering a judgment of conviction for the next lower degree of offense is in the interest of justice.
(3) (a) An offense may be reduced only one degree under this section, whether the reduction is entered under Subsection (1) or (2), unless the prosecutor specifically agrees in writing or on the court record that the offense may be reduced two degrees.
(b) In no case may an offense be reduced under this section by more than two degrees.
(4) This section does not preclude any person from obtaining or being granted an expungement of his record as provided by law.
(5) The court may not enter judgment for a conviction for a lower degree of offense if:
(a) the reduction is specifically precluded by law; or
(b) if any unpaid balance remains on court ordered restitution for the offense for which the reduction is sought.
(6) When the court enters 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.
(7) (a) A person may not obtain a reduction under this section of a conviction that requires the person to register as a sex offender until the registration requirements under Title 77, Chapter 41, Sex and Kidnap Offender Registry, have expired.
(b) A person required to register as a sex offender for the person’s lifetime under Subsection 77-41-105(3)(c) may not be granted a reduction of the conviction for the offense or offenses that require the person to register as a sex offender.
(8) As used in this section, “next lower degree of offense” includes an offense regarding which:
(a) a statutory enhancement is charged in the information or indictment that would increase either the maximum or the minimum sentence; and
(b) the court removes the statutory enhancement pursuant to this section.
Content by Dain Smoland (Google+)