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Providing the highest quality of legal representation at a reasonable cost.
The Law Firm of Stowell, Crayk & Bown
The Law Firm of Stowell, Crayk & Bown

State of Utah Felony Crime Charges Definitions used for Expungement

This information is provided by the State of Utah under Utah Code Sections 76-3-203.5 and 77-41-102


 
(a) "Felony" means any violation of a criminal statute of the state, any other state, the United States, or any district, possession, or territory of the United States for which the maximum punishment the offender may be subjected to exceeds one year in prison.
(b) "Habitual violent offender" means a person convicted within the state of any violent felony and who on at least two previous occasions has been convicted of a violent felony and committed to either prison in Utah or an equivalent correctional institution of another state or of the United States either at initial sentencing or after revocation of probation.
(c) "Violent felony" means:
(i) any of the following offenses, or any attempt, solicitation, or conspiracy to commit any of the following offenses punishable as a felony:
(A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief, Title 76, Chapter 6, Part 1, Property Destruction;
(B) assault by prisoner, Section 76-5-102.5;
(C) disarming a police officer, Section 76-5-102.8;
(D) aggravated assault, Section 76-5-103;
(E) aggravated assault by prisoner, Section 76-5-103.5;
(F) mayhem, Section 76-5-105;
(G) stalking, Subsection 76-5-106.5(2) or (3);
(H) threat of terrorism, Section 76-5-107.3;
(I) child abuse, Subsection 76-5-109(2)(a) or (b);
(J) commission of domestic violence in the presence of a child, Section 76-5-109.1;
(K) abuse or neglect of a child with a disability, Section 76-5-110;
(L) abuse, neglect, or exploitation of a vulnerable adult, Section 76-5-111;
(M) endangerment of a child or vulnerable adult, Section 76-5-112.5;
(N) criminal homicide offenses under Title 76, Chapter 5, Part 2, Criminal Homicide;
(O) kidnapping, child kidnapping, and aggravated kidnapping under Title 76, Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling;
(P) rape, Section 76-5-402;
(Q) rape of a child, Section 76-5-402.1;
(R) object rape, Section 76-5-402.2;
(S) object rape of a child, Section 76-5-402.3;
(T) forcible sodomy, Section 76-5-403;
(U) sodomy on a child, Section 76-5-403.1;
(V) forcible sexual abuse, Section 76-5-404;
(W) aggravated sexual abuse of a child or sexual abuse of a child, Section 76-5-404.1;
(X) aggravated sexual assault, Section 76-5-405;
(Y) sexual exploitation of a minor, Section 76-5b-201;
(Z) sexual exploitation of a vulnerable adult, Section 76-5b-202;
(AA) aggravated burglary and burglary of a dwelling under Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass;
(BB) aggravated robbery and robbery under Title 76, Chapter 6, Part 3, Robbery;
(CC) theft by extortion under Subsection 76-6-406(2)(a) or (b);
(DD) tampering with a witness under Subsection 76-8-508(1);
(EE) retaliation against a witness, victim, or informant under Section 76-8-508.3;
(FF) tampering with a juror under Subsection 76-8-508.5(2)(c);
(GG) extortion to dismiss a criminal proceeding under Section 76-8-509 if by any threat or by use of force theft by extortion has been committed pursuant to Subsections 76-6-406(2)(a)(b), and (i);
(HH) possession, use, or removal of explosive, chemical, or incendiary devices under Subsections 76-10-306(3) through (6);
(II) unlawful delivery of explosive, chemical, or incendiary devices under Section 76-10-307;
(JJ) purchase or possession of a dangerous weapon or handgun by a restricted person under Section 76-10-503;
(KK) unlawful discharge of a firearm under Section 76-10-508;
(LL) aggravated exploitation of prostitution under Subsection 76-10-1306(1)(a);
(MM) bus hijacking under Section 76-10-1504; and
(NN) discharging firearms and hurling missiles under Section 76-10-1505; or
(ii) any felony violation of a criminal statute of any other state, the United States, or any district, possession, or territory of the United States which would constitute a violent felony as defined in this Subsection (1) if committed in this state.

(2) If a person is convicted in this state of a violent felony by plea or by verdict and the trier of fact determines beyond a reasonable doubt that the person is a habitual violent offender under this section, the penalty for a:
(a) third degree felony is as if the conviction were for a first degree felony;
(b) second degree felony is as if the conviction were for a first degree felony; or
(c) first degree felony remains the penalty for a first degree penalty except:
(i) the convicted person is not eligible for probation; and
(ii) the Board of Pardons and Parole shall consider that the convicted person is a habitual violent offender as an aggravating factor in determining the length of incarceration.

(3)
(a) The prosecuting attorney, or grand jury if an indictment is returned, shall provide notice in the information or indictment that the defendant is subject to punishment as a habitual violent offender under this section. Notice shall include the case number, court, and date of conviction or commitment of any case relied upon by the prosecution.
(b)
(i) The defendant shall serve notice in writing upon the prosecutor if the defendant intends to deny that:
(A) the defendant is the person who was convicted or committed;
(B) the defendant was represented by counsel or had waived counsel; or
(C) the defendant's plea was understandingly or voluntarily entered.
(ii) The notice of denial shall be served not later than five days prior to trial and shall state in detail the defendant's contention regarding the previous conviction and commitment.

(4)
(a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to a jury, the jury may not be told, until after it returns its verdict on the underlying felony charge, of the:
(i) defendant's previous convictions for violent felonies, except as otherwise provided in the Utah Rules of Evidence; or
(ii) allegation against the defendant of being a habitual violent offender.
(b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of being an habitual violent offender by the same jury, if practicable, unless the defendant waives the jury, in which case the allegation shall be tried immediately to the court.
(c)
(i) Before or at the time of sentencing the trier of fact shall determine if this section applies.
(ii) The trier of fact shall consider any evidence presented at trial and the prosecution and the defendant shall be afforded an opportunity to present any necessary additional evidence.
(iii) Before sentencing under this section, the trier of fact shall determine whether this section is applicable beyond a reasonable doubt.
(d) If any previous conviction and commitment is based upon a plea of guilty or no contest, there is a rebuttable presumption that the conviction and commitment were regular and lawful in all respects if the conviction and commitment occurred after January 1, 1970. If the conviction and commitment occurred prior to January 1, 1970, the burden is on the prosecution to establish by a preponderance of the evidence that the defendant was then represented by counsel or had lawfully waived the right to have counsel present, and that the defendant's plea was understandingly and voluntarily entered.
(e) If the trier of fact finds this section applicable, the court shall enter that specific finding on the record and shall indicate in the order of judgment and commitment that the defendant has been found by the trier of fact to be a habitual violent offender and is sentenced under this section.

(5)
(a) The sentencing enhancement provisions of Section 76-3-407 supersede the provisions of this section.
(b) Notwithstanding Subsection (5)(a), the "violent felony" offense defined in Subsection (1)(c) shall include any felony sexual offense violation of Title 76, Chapter 5, Part 4, Sexual Offenses, to determine if the convicted person is a habitual violent offender.

(6) The sentencing enhancement described in this section does not apply if:
(a) the offense for which the person is being sentenced is:
(i) a grievous sexual offense;
(ii) child kidnapping, Section 76-5-301.1;
(iii) aggravated kidnapping, Section 76-5-302; or
(iv) forcible sexual abuse, Section 76-5-404; and
(b) applying the sentencing enhancement provided for in this section would result in a lower maximum penalty than the penalty provided for under the section that describes the offense for which the person is being sentenced.

 

"Kidnap offender" means any person other than a natural parent of the victim who:
(a) has been convicted in this state of a violation of:
(i) Subsection 76-5-301(1)(c) or (d), kidnapping;
(ii) Section 76-5-301.1, child kidnapping;
(iii) Section 76-5-302, aggravated kidnapping;
(iv) Section 76-5-310, aggravated human trafficking, on or after May 10, 2011; or
(v) attempting, soliciting, or conspiring to commit any felony offense listed in Subsections (9)(a)(i) through (iv);
(b) has been convicted of any crime, or an attempt, solicitation, or conspiracy to commit a crime in another jurisdiction, including any state, federal, or military court that is substantially equivalent to the offenses listed in Subsection (9)(a) and who is:
(i) a Utah resident; or
(ii) not a Utah resident, but who, in any 12-month period, is in this state for a total of 10 or more days, regardless of whether or not the offender intends to permanently reside in this state;
(c)
(i) is required to register as a kidnap offender in any other jurisdiction of original conviction, who is required to register as a kidnap offender by any state, federal, or military court, or who would be required to register as a kidnap offender if residing in the jurisdiction of the conviction regardless of the date of the conviction or any previous registration requirements; and
(ii) in any 12-month period, is in this state for a total of 10 or more days, regardless of whether or not the offender intends to permanently reside in this state;
(d) is a nonresident regularly employed or working in this state, or who is a student in this state, and was convicted of one or more offenses listed in Subsection (9), or any substantially equivalent offense in another jurisdiction, or as a result of the conviction, is required to register in the person's state of residence;
(e) is found not guilty by reason of insanity in this state or in any other jurisdiction of one or more offenses listed in Subsection (9); or
(f) is adjudicated delinquent based on one or more offenses listed in Subsection (9)(a) and who has been committed to the division for secure confinement for that offense and remains in the division's custody 30 days prior to the person's 21st birthday.

(10) "Natural parent" means a minor's biological or adoptive parent, and includes the minor's noncustodial parent.

(11) "Offender" means a kidnap offender as defined in Subsection (9) or a sex offender as defined in Subsection (17).

(12) "Online identifier" or "Internet identifier":
(a) means any electronic mail, chat, instant messenger, social networking, or similar name used for Internet communication; and
(b) does not include date of birth, social security number, PIN number, or Internet passwords.

(13) "Primary residence" means the location where the offender regularly resides, even if the offender intends to move to another location or return to another location at any future date.

(14) "Register" means to comply with the requirements of this chapter and administrative rules of the department made under this chapter.

(15) "Registration website" means the Sex and Kidnap Offender Notification and Registration website described in Section 77-41-110 and the information on the website.

(16) "Secondary residence" means any real property that the offender owns or has a financial interest in, or any location where, in any 12-month period, the offender stays overnight a total of 10 or more nights when not staying at the offender's primary residence.

(17) "Sex offender" means any person:
(a) convicted in this state of:
(i) a felony or class A misdemeanor violation of Section 76-4-401, enticing a minor;
(ii) Section 76-5b-202, sexual exploitation of a vulnerable adult, on or after May 10, 2011;
(iii) a felony violation of Section 76-5-401, unlawful sexual activity with a minor;
(iv) Section 76-5-401.1, sexual abuse of a minor, except under Subsection 76-5-401.1(3)(a);
(v) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old;
(vi) Section 76-5-402, rape;
(vii) Section 76-5-402.1, rape of a child;
(viii) Section 76-5-402.2, object rape;
(ix) Section 76-5-402.3, object rape of a child;
(x) a felony violation of Section 76-5-403, forcible sodomy;
(xi) Section 76-5-403.1, sodomy on a child;
(xii) Section 76-5-404, forcible sexual abuse;
(xiii) Section 76-5-404.1, sexual abuse of a child or aggravated sexual abuse of a child;
(xiv) Section 76-5-405, aggravated sexual assault;
(xv) Section 76-5-412, custodial sexual relations, when the person in custody is younger than 18 years of age, if the offense is committed on or after May 10, 2011;
(xvi) Section 76-5b-201, sexual exploitation of a minor;
(xvii) Section 76-5b-204, sexual extortion or aggravated sexual extortion;
(xviii) Section 76-7-102, incest;
(xix) Section 76-9-702, lewdness, if the person has been convicted of the offense four or more times;
(xx) Section 76-9-702.1, sexual battery, if the person has been convicted of the offense four or more times;
(xxi) any combination of convictions of Section 76-9-702, lewdness, and of Section 76-9-702.1, sexual battery, that total four or more convictions;
(xxii) Section 76-9-702.5, lewdness involving a child;
(xxiii) a felony or class A misdemeanor violation of Section 76-9-702.7, voyeurism;
(xxiv) Section 76-10-1306, aggravated exploitation of prostitution; or
(xxv) attempting, soliciting, or conspiring to commit any felony offense listed in Subsection (17)(a);
(b) who has been convicted of any crime, or an attempt, solicitation, or conspiracy to commit a crime in another jurisdiction, including any state, federal, or military court that is substantially equivalent to the offenses listed in Subsection (17)(a) and who is:
(i) a Utah resident; or
(ii) not a Utah resident, but who, in any 12-month period, is in this state for a total of 10 or more days, regardless of whether the offender intends to permanently reside in this state;
(c)
(i) who is required to register as a sex offender in any other jurisdiction of original conviction, who is required to register as a sex offender by any state, federal, or military court, or who would be required to register as a sex offender if residing in the jurisdiction of the original conviction regardless of the date of the conviction or any previous registration requirements; and
(ii) who, in any 12-month period, is in the state for a total of 10 or more days, regardless of whether or not the offender intends to permanently reside in this state;
(d) who is a nonresident regularly employed or working in this state or who is a student in this state and was convicted of one or more offenses listed in Subsection (17)(a), or any substantially equivalent offense in any jurisdiction, or as a result of the conviction, is required to register in the person's jurisdiction of residence;
(e) who is found not guilty by reason of insanity in this state, or in any other jurisdiction of one or more offenses listed in Subsection (17)(a); or
(f) who is adjudicated delinquent based on one or more offenses listed in Subsection (17)(a) and who has been committed to the division for secure confinement for that offense and remains in the division's custody 30 days prior to the person's 21st birthday.

(18) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving.

(19) "Vehicle" means any motor vehicle, aircraft, or watercraft subject to registration in any jurisdiction.

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