Utah Criminal Defense Attorney–Jake Gunter
When you do not go to jail or prison after being convicted of Utah crime, you will be placed on probation. Even when you get out of prison you will be placed on parole. Parole is where you are let out of prison because you served your prison sentence or you were released earlier. Probation is where you did not go to prison or jail, but are being monitored by the court. You can be on probation after you get out of jail.
When you are doing well on probation, your Utah criminal defense attorney can move the court for early termination of your probation. Additionally, if you have successfully completed probation or are completely done with probation, your Utah criminal defense attorney can file a 402 reduction motion to reduce the severity of the conviction by one or two grades.
Our attorneys regularly deal with Utah criminal probation issues. Contact Jake Gunter at Howard Lewis & Petersen, PC for a free consultation concerning your probation matter.
2 Types of Utah Criminal Probation.
(A). Court Criminal Probation. In most Utah Misdemeanor cases, you will be placed on court probation. Court probation is where the court monitors your progress with court issued sentencing terms. In general, with felony convictions, you will not be on court-supervised probation. Court probation does not cost extra money unlike supervised probation. In court probation, you may have court review hearings every few months, depending on your compliance level on probation. But there is nobody to check in with like supervised probation.
(B). Supervised Criminal Probation. In some Utah Misdemeanors, you will be placed on supervised probation. With most felonies, you will be placed on supervised probation through Utah’s Adult Probation & Parole. There are private, non-governmental supervising probation agencies who get paid by the probationer. With supervised probation, you will be assigned a very overworked government parole/probation officer who will be difficult to reach or communicate with. Utah’s Adult Probation & Parole is ran by the Utah Department of Corrections which administers Utah’s prison system.
You can read more here about the Utah Department of Corrections and Adult Probation & Parole.
Supervised probation can be imposed by the court on its own initiative or by the prosecuting attorney’s motion. The defendant’s criminal history, social ties, rehabilitation and the severity of the charges are all taken into consideration when determining whether supervised probation is appropriate.
Possible Terms of a Utah Criminal Sentence and Probation.
(1). County Jail.
(2). Utah Department of Corrections–Prison.
(3). Fines and a fines payments schedule.
(4). Substance abuse evaluation and treatment follow through.
(5). Mandatory supervised probation for certain statutory offenses. Utah drunk driving when you blow a .16 Blood Alcohol Content or above requires mandatory supervised probation.
(6). Random drug and alcohol testing.
(7). No new criminal arrests or convictions. Many times the court will allow for one traffic violation or completely exempt traffic offenses altogether as counting for probation violations.
Utah Probation Violation Defense Lawyers. Utah Probation Violation Procedure and Timelines.
(1). Sentencing and Probation Imposed. You are convicted of Utah crime and placed on probation, or you just finished your jail sentence and are now on probation of some sort. This could be supervised probation, court probation or probation with Adult Probation & Parole.
(2). Probation Violation Allegations. The prosecutor or the court initiates a probation violation allegation against you.
Prosecutor Initiated Probation Violation. Sometimes the prosecuting attorney catches news of new criminal allegations against you because it comes across their desk for screening of criminal charges. Other times, concerned family members call the prosecutor or court and report your new convictions or arrest.
Court Initiated Probation Violations. The court can self-initiate a probation violation when they see you in court and know you from your past dealings with the court. New allegations can also come out in open court when you are at review hearings for other cases.
Minimum Constitutional Due Process and Fairness Requirements.
When you are accused of a probation or parole violation, you have certain legal rights. Namely, you must be put on written notice of the allegations against you. You must have an opportunity to deny or admit the allegations lodged against you. You have the right to an evidentiary hearing where you can cross-examine the witness and evidence offered against you. You have a right to an attorney if you cannot afford one.
Often, the prosecutor will bring the arresting police officer or your probation agent into court to testify regarding the alleged probation violation allegations. Other times, they will bring certified copies of the new criminal convictions demonstrating your probation violation.
(3). Types of Utah Probation Violations.
- Failure to pay assessed fines.
- Failure to stay current on your fines.
- Drug testing violation.
- Alcohol testing violation.
- New criminal charges.
- Prescription drug abuse.
- New criminal convictions.
- Failure to complete substance abuse treatment.
- Failure to install an interlock alcohol ignition device in after a Utah drunk driving conviction.
- Failure to progress in substance abuse treatment.
- Failure to complete community service hours.
- Failure to pay criminal restitution.
- Leaving the State without court permission.
- Failure to report to your supervised probation agent.
Utah Probation Violation Sanctions.
When the court or the prosecutor alleges a probation or parole violation against you have these options:
- Admit the probation violations as stated.
- Admit to an amended violation that modify the original probation violation allegations. Modifying the language of the probation violation language is similar to plea bargaining with the prosecutor.
- Deny some allegations and admit other allegations.
- Deny all allegations and move for an evidentiary hearing where the prosecutor is forced to prove each allegation by a preponderance of the evidence.
Preponderance of the Evidence Standard for Probation Violations.
The legal standard for finding you responsible for a Utah probation violation is a “Preponderance” standard. The Utah probation violation evidentiary standard is not proof “Beyond a Reasonable Doubt,” like the original underlying criminal trial is based on.
The prosecutor does not have to prove your probation violation beyond a reasonable doubt, only by a preponderance of the evidence.
Utah law describes the Preponderance Standard as follows:
CV117 Preponderance of the evidence.
You may have heard that in a criminal case proof must be beyond a reasonable doubt, but this is not a criminal case. In a civil case such as this one, a different level of proof applies: proof by a preponderance of the evidence.
When I tell you that a party has the burden of proof or that a party must prove something by a “preponderance of the evidence,” I mean that the party must persuade you, by the evidence, that the fact is more likely to be true than not true.
Another way of saying this is proof by the greater weight of the evidence, however slight. Weighing the evidence does not mean counting the number of witnesses nor the amount of testimony. Rather, it means evaluating the persuasive character of the evidence. In weighing the evidence, you should consider all of the evidence that applies to a fact, no matter which party presented it. The weight to be given to each piece of evidence is for you to decide.
After weighing all of the evidence, if you decide that a fact is more likely true than not, then you must find that the fact has been proved. On the other hand, if you decide that the evidence regarding a fact is evenly balanced, then you must find that the fact has not been proved, and the party has therefore failed to meet its burden of proof to establish that fact.
Judge Sanctions for Probation Violations.
Ultimately, it is the judge who will decide what sanction will be ordered for a Utah criminal probation violation. The judge has wide latitude to find what violations occurred and what the sanctions and penalties will be.
Here are the most common probation violation sanctions in Utah:
(1). Additional fine.
(2). Jail time. Could be anywhere from one day to 6 months depending.
(3). Community service.
(4). Sent back to prison for a parole violation.
(5). Revocation of your Plea in Abeyance if you originally had a Plea in Abeyance.
(6). Some sentencing benefits or plea bargain benefits can be undone by the judge for a probation violation. As of 2017 sometimes as part of your plea bargain to Impaired Driving from a Driving while Under the Influence, if you do not successfully complete probation the Impaired Driving plea bargain conviction will revert back to the higher offense of Driving under the Influence.
Similar plea bargains can be struck where if you successfully complete probation the parties and the judge will agree to a two or one step reduction in the severity of your criminal conviction. For example, say you pled guilty to 3rd Degree Retail Theft. As part of the plea and sentence bargain, the judge and the prosecutor agreed to a one step reduction in the severity of the grade to a Class A Misdemeanor, Retail Theft, if you successfully complete probation.
EARLY TERMINATION OF PROBATION
If your original probationary term was 12 months, you can often motion the sentencing court for early termination of your probation. In order to terminate your probation early, you generally must have done the following:
(1). Completely, or substantially paid off all fines.
(2). Had no probation violations or new convictions or arrests during your probationary term.
(3). Served at least six months of probation incident free. The time served can vary depending on the conviction and other variables.
(4). Timely completed any mandatory substance abuse evaluation and treatment recommendations.
The procedure is for your Utah criminal defense attorney to file a written motion outlining your successful probation track record to date. Sometimes you can get the prosecuting attorney to agree to the motion which makes it much more likely to be granted by the judge. A hearing is generally held concerning the motion to terminate probation early and arguments are heard by the court.
RULE 402 REDUCTION OF CONVICTIONS
Utah Code Ann. 76-3-402 (2017) allows a convicted criminal defendant to ask the court to reduce the severity of his conviction by one or two grades. Example: If you were convicted of Aggravated Assault, a 3rd Degree Felony, you could ask the court at sentencing or any time after sentencing for the court to reduce the grade of the conviction from a 3rd Degree Felony to a Class A Misdemeanor.
Utah Rule 12(c)(2) of Criminal Procedure reads:
Motions for a reduction of criminal offense at sentencing pursuant to Utah Code Section 76‑3‑402(1) shall be in writing and filed at least 14 days prior to the date of sentencing unless the court sets the date for sentencing within ten days of the entry of conviction. Motions for a reduction of criminal offense pursuant to Utah Code Section 76‑3‑402(2) may be raised at any time after sentencing upon proper service of the motion on the appropriate prosecuting entity.
Utah Code Section 76-3-402 reads:
Effective 5/9/2017
76-3-402. Conviction of lower degree of offense — Procedure and limitations.
(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)(a) 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:
(i) after the defendant has been successfully discharged from probation;
(ii) upon motion and notice to the prosecuting attorney;
(iii) after reasonable effort has been made by the prosecuting attorney to provide notice to any victims;
(iv) after a hearing if requested by either party described in Subsection (2)(a)(iii); and
(v) if the court finds entering a judgment of conviction for the next lower degree of offense is in the interest of justice.
(b) In making the finding in Subsection (2)(a)(v), the court shall consider as a factor in favor of granting the reduction that, subsequent to the defendant’s conviction, the level of the offense has been reduced by law.
(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)(a) A person may not obtain a reduction under this section of a conviction that requires the person to register as a child abuse offender until the registration requirements under Title 77, Chapter 43, Child Abuse Offender Registry, have expired.
(b) A person required to register as a child abuse offender for the person’s lifetime under Subsection 77-43-105(3)(c) may not be granted a reduction of the conviction for the offense or offenses that require the person to register as a child abuse offender.
(9) 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.
The essence of the Rule 402 reduction motion is that the court can unilaterally reduce your criminal conviction by one grade and reduce the conviction by two grades if you can convince the prosecuting attorney to agree to it.
Lastly, certain Utah criminal convictions are prohibited from being reduced under a Rule 402 reduction motion. Specifically, any conviction that mandates you to register as a sex offender or child abuse offender will preclude your ability to reduce your convictions.
HIRE A PROBATION VIOLATION ATTORNEY
Utah probation and parole violations can land you back in jail or prison. They should be taken very seriously. Hiring the right Utah criminal defense attorney help greatly help win or mitigate any probation/parole violation.
