Motion to Reduce Conviction (402 Motion)

Introduction

You can ask the court to lower the degree of your criminal conviction if you meet the requirements. Sometimes this is called a "402 reduction" or a "402 motion." The name refers to the part of the law that describes the requirements. The law is Utah Code Section 76-3-402.

Lowering the degree of conviction can happen at the time of sentencing. Or it can happen later. A later reduction will not happen automatically. Read below to learn how to ask for the reduction.

Some people ask to lower their conviction because they hope to later try to expunge the crime from their record. See our Expunging Adult Criminal Records page for more information.

When you can ask to lower the degree of your conviction (requirements)

When you can ask to lower the degree of your conviction depends on what happened in your case. Answer the questions below to learn more. 

The court can lower the degree of conviction below the normal degree for that type of offense. This happens at the time of sentencing. The court must:

  • Think about the nature and circumstances of the offense
  • Think about the history and character of the defendant
  • Give the victim and prosecutor the chance to share what they think
  • Decide the normal degree of the offense in the law would be unduly harsh for this case

Talk to your defense lawyer to see if you can ask for a reduction. If you do not have a lawyer, talk to the prosecutor and bring it up with the judge at the sentencing hearing.

The court can lower the degree of a conviction by one degree if you meet all the following requirements:

  • You have successfully completed probation or parole
  • You have paid all fines and court-ordered restitution
  • One of these applies:
    • You were not required to register as a sex offender, or
    • You were required to register as a sex offender under, and the registration requirement has expired.
  • One of these applies:
    • You were not required to register as a child abuse offender, or
    • You were required to register as a child abuse offender, and the registration requirement has expired.
  • The court decides that it is in the interest of justice to lower the degree of your conviction.

In your paperwork and at the hearing, you must give the court proof that you meet these requirements.

The court can lower the charge by two degrees only if the prosecutor agrees and you have met these requirements. The court cannot lower the degree of the offense by more than two degrees.

Scroll down to how to ask for the reduction for next steps.

The court can lower the degree of a conviction by one degree if you meet all the following requirements:

  • 3 years or more have passed since you successfully completed a rehabilitation program. Look at Utah Code 76-3-402 to see what kinds of programs qualify.
  • You have not been convicted of a felony or misdemeanor other than a traffic or minor regulatory offense during that time.
  • There are no criminal proceedings pending against you.
  • You are not on probation, parole, or currently incarcerated for any other offense.
  • The case is not a violent felony. Or if it is a violent felony, the prosecutor will agree with the reduction.
  • You have paid all fines and court-ordered restitution.
  • One of these applies:
    • You were not required to register as a sex offender, or
    • You were required to register as a sex offender under, and the registration requirement has expired.
  • One of these applies:
    • You were not required to register as a child abuse offender, or
    • You were required to register as a child abuse offender, and the registration requirement has expired.
  • The court decides that it is in the interest of justice to lower the degree of your conviction.

In your paperwork and at the hearing, you must give the court proof that you meet these requirements.

The court can lower the charge by two degrees only if the prosecutor agrees and you have met these requirements. The court cannot lower the degree of the offense by more than two degrees.

Scroll down to how to ask for the reduction for next steps.

The court can lower the degree of a conviction by one degree if you meet all the following requirements:

  • 5 years or more have passed since you were sentenced for a later conviction (in a different case) and you have successfully completed your probation or parole for that case. (It can be after only 3 years if the prosecutor agrees with the reduction.)
  • You have not been convicted of a felony or misdemeanor other than a traffic or minor regulatory offense during that time.
  • There are no criminal proceedings pending against you.
  • You are not on probation, parole, or currently incarcerated for any other offense.
  • The case is not a violent felony. Or if it is a violent felony, the prosecutor will agree with the reduction.
  • You have paid all fines and court-ordered restitution.
  • One of these applies:
    • You were not required to register as a sex offender, or
    • You were required to register as a sex offender under, and the registration requirement has expired.
  • One of these applies:
    • You were not required to register as a child abuse offender, or
    • You were required to register as a child abuse offender, and the registration requirement has expired.
  • The court decides that it is in the interest of justice to lower the degree of your conviction.

In your paperwork and at the hearing, you must give the court proof that you meet these requirements.

The court can lower the charge by two degrees only if the prosecutor agrees and you have met these requirements. The court cannot lower the degree of the offense by more than two degrees.

Scroll down to how to ask for the reduction for next steps.

The court can lower the degree of a conviction by one degree if you meet all the following requirements:

  • 5 years or more have passed since your probation or parole did not result in a successful discharge.
  • You have not been convicted of a felony or misdemeanor other than a traffic or minor regulatory offense during that time.
  • There are no criminal proceedings pending against you.
  • You are not on probation, parole, or currently incarcerated for any other offense.
  • The case is not a violent felony. Or if it is a violent felony, the prosecutor will agree with the reduction.
  • You have paid all fines and court-ordered restitution.
  • One of these applies:
    • You were not required to register as a sex offender, or
    • You were required to register as a sex offender under, and the registration requirement has expired.
  • One of these applies:
    • You were not required to register as a child abuse offender, or
    • You were required to register as a child abuse offender, and the registration requirement has expired.
  • The court decides that it is in the interest of justice to lower the degree of your conviction.

In your paperwork and at the hearing, you must give the court proof that you meet these requirements.

The court can lower the charge by two degrees only if the prosecutor agrees and you have met these requirements. The court cannot lower the degree of the offense by more than two degrees.

Scroll down to how to ask for the reduction for next steps.

 

How to ask to lower your conviction

Step 1: File
Fill out this form: 

  • 1023XX

File your motion in the same court that handled the original criminal case using the same case number as the criminal case.

If you have any proof (like a certificate of completion from a rehabilitation program), file that along with your motion. 

Step 2: Contact the prosecutor
Ask the prosecutor who handled your case if they will agree to the motion. 

If your case was filed by a:

If the prosecutor agrees, they may file with the court, saying they agree with your motion.

If they do not agree, serve them a copy of your motion. 

Step 3: Wait and respond to any other paperwork
The prosecutor will notify any victims in the case (if there are any) about your motion. The prosecutor, the victim, or both may file with the court a statement opposing your motion. If they file an opposition and bring up something new that you need to respond to you can file a Reply Memorandum Supporting the Motion. See our Motions page for more information about procedures and timelines.

If either the prosecutor or the victim files an opposition, the court will hold a hearing. At the hearing, all parties will have a chance to present information and arguments. If neither the prosecutor nor the victim files a statement, the court could hold a hearing on its own motion or might grant the motion without a hearing.

The prosecutor is required to respond within 35 days. If they do not file any papers after that, file these forms:

  • Request to Submit for Decision - PDF | Word
  • Findings of Fact, Conclusions of Law, and Order on Motion to Reduce Conviction - PDF | Word

If the court grants your request and lowers your conviction

If the judge grants your motion, the court will notify the Bureau of Criminal Identification (BCI). However, it is your responsibility to confirm with BCI that the reduction order has been made part of your criminal history. You may need to get a certified copy of the order from the court and provide that to BCI.

If the motion is granted the title of the offense does not change. Only the degree of the offense is changed.

An offense can only be lowered by two degrees.

If you are hoping to expunge the crime for your record, see our page on Expunging Adult Criminal Records page.
 

Forms

Information about filing documents in existing cases by email

Required Forms

  • 1023XX
  • Request to Submit for Decision - PDF | Word
    (filed after all documents have been filed, or the time has passed for the other party to respond)
  • Findings of Fact, Conclusions of Law, and Order on Motion to Reduce Conviction - PDF | Word

Optional Forms

  • 1122XX
  • 1106GE
    (if the prosecutor has disagreed with the motion and presented a new matter in their response, and the moving party wishes to respond)

 

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