Probation is a rehabilitative tool that gives convicted offenders a second chance. Instead of being sentenced to jail or prison, probationers are permitted to serve out their sentences in relative freedom among the general public, provided they follow specific rules. But probation is a privilege, not a right, and is reserved only for offenders who pass certain requirements. Some of these requirements deal with public safety, and certain offenders are considered too dangerous to be placed on probation. Salt Lake City criminal defense lawyer Darwin Overson explains which felonies are (and aren’t) eligible for probation in Utah, including violent crimes and sex crimes.
How Probation is Decided in Utah Criminal Cases
The concepts of probation and parole are often confused. Before we get started, let’s take a moment to clearly distinguish one from the other.
When someone is placed on parole, it means he or she is released from prison early. When someone is placed on probation, it means he or she does not have to go to jail or prison at all. (The exception would be “shock probation,” where the offender serves part of a sentence before being released and subsequently placed on standard probation.) This article will focus specifically on probation as it relates to violent felony crimes.
For obvious reasons, most defendants prefer probation over incarceration. However, that isn’t the offender’s choice. Instead, the decision to grant probation over incarceration falls to the sentencing judge.
This is established by Utah Code § 77-18-1(2)(a), which says “the court may, after imposing sentence, suspend the execution of the sentence and place the defendant on probation.” This applies to cases where the defendant:
- Pleads guilty.
- Pleads guilty with a mental illness.
- Pleads no contest (nolo contendere).
- Is otherwise convicted.
Next, the court has to decide between a few different types of probation, which are differentiated by the amount of direct supervision each one involves. The less serious the underlying offense, the less supervision is necessary. The more serious the offense, the more supervision is necessary. Probationers check in with probation officers, and can have their probation revoked if they commit a violation.
Which Violent Felony Crimes Are Ineligible for Probation?
Going into further detail, Utah Code § 77-18-1(3)(a) lists a few different standards that the court will look at when selecting the appropriate level of supervision. One of these standards is the consideration for public safety.
In the interest of protecting the general public, non-violent felonies such as white collar crimes or simple drug possession typically have a better chance of qualifying for probation than violent felonies. At the same time, threat of physical violence is only one component of public safety. Sex crimes, while not necessarily violent in nature, are also subject to special considerations when ordering probation for offenders in Utah.
In fact, Utah Code § 76-3-406 specifically lists over a dozen felonies which simply do not qualify for probation, with a few exceptions. The statute could not be clearer when it states that “probation shall not be granted… for any person who commits a capital felony [i.e. aggravated murder] or a first degree felony involving [any of the following crimes]”:
- Aggravated Kidnapping
- Aggravated Sexual Abuse of a Child
- Aggravated Sexual Assault
- Attempted Object Rape of a Child
- Attempted Rape of a Child
- Attempted Sodomy on a Child
- Child Kidnapping
- Forcible Sexual Abuse
- Forcible Sodomy
- Murder
- Object Rape
- Object Rape of a Child
- Rape
- Sodomy on a Child
However, even among these highly serious crimes, there are still exceptions depending on the circumstances under which the offender was sentenced. For example, forcible sexual abuse is barred from probation only in cases where the offender caused serious bodily injury (see § 76-5-404(2)(b)) or where the court imposed a sentence of at least six years to life (see § 76-5-404(3)). To reiterate, the above offenses are ineligible only in cases where they are graded as first degree felonies. Second and third degree felonies may still be eligible for probation, even those which are designated violent or sexual in nature.
For example, the following offenses are all violent felonies under Utah § 76-3-203.5(1)(c) – yet none are included on the above list. In other words, any of the following crimes could potentially be eligible for probation (depending on additional factors):
- Aggravated Burglary
- Aggravated Exploitation of Prostitution
- Aggravated Robbery
- Arson
- Child Abuse
- Criminal Mischief
- Mayhem
- Stalking
- Theft by Extortion
- Threat of Terrorism
- Unlawful Discharge of a Firearm
Felonies carry the harshest criminal penalties, and a conviction could have serious negative impacts on the rest of your life. When the stakes are this high, you need knowledgeable and aggressive legal representation on your side. Criminal defense lawyer Darwin Overson has over 15 years of experience, and offers free initial consultations. To set up a free and completely confidential case evaluation, call Darwin at (801) 758-2287 right away.
