Posted: September 3, 2004
Utah Rules of Criminal Procedure
URCrP 07. Proceedings before magistrate. Amend. Conforms the rule to the statute which allows justice court judges to make probable cause determinations in first degree felonies. Also eliminates the requirement of a written bindover order.
URCrP 11. Pleas. Amend. States that compliance with the rule will be determined by reviewing the entire record and variances which do not affect substantial rights will be disregarded.
URCrP 12. Motions. Amend. Clarifies that motions for a reduction may be filed any time after sentencing.
I support the amendment to Rule 12 URCrP. The amendment eliminates confusion created by the present language and conforms the rule to the practice of most courts when considering motions to reduce the severity of the offense for permanent record purposes.
As the author of the proposed change to Rule 11, it should come as no surprise that I support it. The change makes our rule consistent with the federal rule which has incorporated a harmless error standard for many years.
This new addition makes good sense in both law and practice. Too often, what would otherwise be prefectly good pleas are set aside due to a minor defect. Unfortunately, we seem to have elevated form over substance resulting in unjust results. Especially is that true where some minor or trivial point in the colloquy is overlooked.
This court should adopt this addition.
DSW
It seems to me that the proposed Rule 12 change concerning motions for reduction in sentence should only apply to cases that meet the requirements of section 76-3-402 SUBSECTION TWO (2). Subsection (2) needs to specifically be added into the rule change. The way it is written right now, a defendant who has been in prison for 5 years could file a motion for reduction in sentence under 76-3-402(1). That is not an appropriate change, and it infringes on the authority of the Board of Pardons and Parole. If the rule change is going to be made, it should be made clear that it only applies to cases that fall under subsection (2).
Re. the proposed amendment to Rule 12. The Utah County Attorney’s Office just received a motion for a 402 reduction in a case that is over 10 years old. It seems to me that there ought to be some limit on how long you can wait after probation to file these motions. With the current language we could theoretically have someone coming back 30 years after they completed probation and asking for a reduction. Couldn’t we require people to ask for these reductions within, for example, one or two years after they complete probation?