In such a plea, the defendant still pleas guilty, but that individual becomes eligible for specific benefits available only to those who quality for such a plea.
There are three enumerated mental illnesses which qualify for a plea with a mental health condition and one “catch all” illness: (1) schizophrenia spectrum and other psychotic disorders, (2) bipolar I disorder, (3) post-traumatic stress disorder, and (4) other serious mental health conditions with psychotic features.
In order to determine that one has a qualifying mental illness one of two things must happen. First, the prosecutor can stipulate, that is, agree, that the defendant has a qualifying mental illness. This can occur by providing the prosecutor with diagnosis documents from a healthcare provider.
Second, if the prosecutor will not agree, then at the defendant’s request the court can order the defendant to submit to an examination by a forensic evaluator. The forensic evaluator will conduct an examination that determines whether: (1) the defendant had a mental condition at the time the crime was committed; (2) the defendant could benefit from supervision or treatment; or (3) the defendant currently is competent to enter a plea. The forensic evaluator’s report will provide findings on these factors. The court must make a positive finding to both numbers (1) and (2) for the defendant to be able enter a plea with a mental health condition.
Once the plea is entered, the court will order Department of Health and Human Services to put together a treatment plan. A defendant also has the option to have a private provider create the treatment plan. The court will then set a review hearing 30 days out to go over the treatment plan, make changes if needed, and then order the defendant to follow that treatment plan.
In ordering a treatment plan, the court has to determine if the defendant should be placed in a secure setting, such as a prison or state hospital. The court can make such an order if it is in the best interests of the defendant, a victim, or the public in general.
The court will then hold period review hearings to follow up on the defendant’s treatment progress. The court can defer sentencing for up to a year if the defendant consents and then after one year the defendant will be sentenced.
A defendant who complies with his treatment plan is eligible for a significant reduction in his conviction. By default, the conviction will be reduced by two degrees, meaning that if the offense was a second degree felony, it will be reduced to a class A misdemeanor. If the prosecutor agrees, however, the conviction can be reduced by up to three degrees (e.g., first degree felony becomes a class A misdemeanor).
If you have been charged with a serious crime and you believe you may qualify for a plea with a mental health condition, give us a call at 801-413-1753. We are experienced in navigating the process of such pleas and know how to give you the best chance of protecting your criminal record.
]]>When a criminal defendant is facing allegations of rape, sexual assault, or other sexual crimes, the prosecutor and his investigators will do everything they can to find out if the defendant has any past convictions or even allegations of other sexual misconduct. This information very often times comes from ex-spouses or former sexual partners.
Upon discovering any such past bad acts, the prosecutor will do everything possible to be able to admit it into evidence at trial, because prosecutors know that if the jury can see that the defendant has been accused before, then he must have done it this time. That logic, however, is exactly what the Utah Rules of Evidence seek to avoid.
Rule 404(b) of the Utah Rules of Evidence prohibits prosecutors from using evidence of past sexual misconduct “…to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” This seems rather straight forward, but the rule continues on with the exceptions for allowing such evidence to prove “…motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Without fail, prosecutors will argue that the past allegation of sexual misconduct is going to be used to show that the defendant did this by lack of accident, without mistake, and it shows he had a motive to do it again.
Even if the prosecutor tries to categorize the past sex crime under one of the 404(b) exceptions, he has to be able to show that there is a proper non-character purpose for introducing the evidence. That is hard to do. Further, the defendant is protected by Rule 403, which prohibits the use of even relevant evidence if its relevance is “substantially outweighed by a danger of…unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fortunately, using Rule 403, several Utah appellate courts have made it more difficult for prosecutors to get this type of evidence admitted under the 404(b) exceptions. That is because it is difficult for prosecutors to give a logical and valid reason why evidence of past sexual misconduct would not create an unfair prejudice against the defendant. In other words, what would be the proper non-character purpose of the evidence?
At Salcido Law Firm we have some of the most experienced defense attorneys in Utah for sexual misconduct charges and we know how to protect our clients against the State’s attempts to confuse juries by introducing evidence of past sexual misconduct. Get Protected! by giving us a call today at 801-413-1753.
]]>In Utah, a criminal defendant who has been charged with a violent crime may be able to prove that his use of force was justified by requesting and prevailing in a justification hearing.
The justified use of force is codified in Utah Code 76-2-401 through 76-2-409. Generally speaking, the use of force is justified when used in defense of person and property so long as the person using the force reasonably believes that it is necessary to defend the individual or his property against another’s imminent use of unlawful force. There are of course specific differences in what type of force can be used depending on the unlawful force at issue and whether it is an individual or property that is being attacked, but that is the general rule of thumb.
Being a pro-self-defense State, Utah has recently added a procedural mechanism in the form of a justification hearing to streamline criminal defense and save the time and resources that go along with holding criminal trials.
When a criminal defense believes that his use of force was justified, he can file a Motion to Hear Evidence on the Issue of the Justified Use of Force. The criminal defendant is required to make a prima facie showing, that is, a basic showing that his use of force was justified. This is usually satisfied by merely asserting that he felt imminently threatened by another’s unlawful use of force and so he use force to prevent or protect against that force.
Once a prima facie showing is made by the defendant, the burden shifts to the State to show clear and convincing evidence that the defendant’s use of force was NOT justified. The prosecutor attempts to do this through calling witnesses to testify. The defendant can call his own witnesses as well. The judge then decides whether the use of force was justified. If it was justified, the case is dismissed with prejudice. If it was not justified, the defendant can still present his case of self-defense to the jury.
Salcido Law Firm has some of the most experienced attorneys in Utah in justification hearings. Call or text us at 801-413-1753 to discuss your case and whether you have a claim for justification.
]]>A plea in a criminal case is when the prosecutor makes an offer to a criminal defendant to plead guilty or no contest to a crime, usually a lesser offense, in order to persuade the defendant to avoid going to trial. When a defendant enters into a plea agreement with the State, the defendant gives up certain constitutional rights.
When a defendant decides to accept an offer for a plea arrangement he gives up the following constitutional rights:
In many cases a defendant is required to sign a written plea that can be filed with the court. In that document the defendant’s constitutional rights are laid out in detail. Below is an example of the type of written statement concerning a defendant’s constitutional rights that a is required to sign in order for a judge to accept his plea:
I am entering this plea voluntarily. I understand that I have the following rights under the constitutions of Utah and the United States. I also understand that if I plead no contest I will give up all the following rights: Counsel. I know that I have the right to be represented by an attorney and that if I cannot afford one, an attorney will be appointed by the court at no cost to me. I understand that I might later, if the judge determined that I was able, be required to pay for the appointed lawyer’s service to me. I have not waived my right to counsel. I certify that I have read this statement and that I understand the nature and elements of the charges and crime(s) to which I am pleading no contest. I also understand my rights in this case and other cases and the consequences of my no contest plea. If I have not waived my right to counsel, my attorney is _________. My attorney and I have fully discussed this statement, my rights, and the consequences of my no contest plea. Jury Trial. I know that I have a right to a speedy and public trial by an impartial (unbiased) jury and that I will be giving up that right by pleading no contest. Confrontation and cross-examination of witnesses. I know that if I were to have a jury trial, (a) I would have the right to see and observe the witnesses who testified against me and (b) my attorney, or myself if I waived my right to an attorney, would have the opportunity to cross-examine all of the witnesses who testified against me. Right to compel witnesses. I know that if I were to have a jury trial, I could call witnesses if I chose to and I would be able to obtain subpoenas requiring the attendance and testimony of those witnesses. If I could not afford to pay for the witnesses to appear, the State would pay those costs. Right to testify and privilege against self-incrimination. I know that if I were to have a jury trial, I would have the right to testify on my own behalf. I also know that if I chose not to testify, no one could make me testify or make me give evidence against myself I also know that if I chose not to testify, the jury would be told that they could not hold my refusal to testify against me. Presumption of innocence and burden of proof. I know that if I do not plead no contest, I am presumed innocent until the State proves that I am guilty of the charged crime(s). If I choose to fight the charges against me, I need only plead “not guilty,” and my case will be set for a trial. At a trial, the State would have the burden of proving each element of each charge beyond a reasonable doubt. If the trial is before a jury, the verdict must be unanimous, meaning that each juror would have to find me guilty. I understand that if I plead no contest, I give up the presumption of innocence. Appeal. I know that under the Utah Constitution, if I were convicted by a jury or judge, I would have the right to appeal my conviction and sentence. If I could not afford the costs of an appeal, the State would pay those costs for me. I understand that I am giving up my right to appeal my conviction if I plead no contest. I know and understand that by pleading no contest, I am waiving and giving up all the statutory and constitutional rights as explained above.]]>The Utah Juvenile Justice System promotes keeping minors in the juvenile court system even up to the age of 25 in some cases. This is because statistically minors who are able to successfully complete the services provided through the juvenile court system are more likely to avoid becoming part of the adult prison and jail system. There are, however, times when the State of Utah has deemed it necessary and appropriate for certain juvenile offenders to be charged and as an adult.
There are only a couple of scenarios in which a prosecutor must charge a minor as an adult. Specifically, the minor must be either 16 or 17 years old and be charged with either aggravated murder or murder. The primary difference with a 16 or 17 years old who is being charged murder or aggravated murder and an individual who is 18 years or older is that that 16 or 17 year old is not subject to the death sentence or to life without parole.
There are also a number of crimes in which a minor, in a prosecutor’s discretion, can be charged as an adult. Again, the minor must be either 16 or 17 years old and those crimes include: aggravated assault resulting in serious bodily injury, attempted aggravated murder, attempted murder, aggravated kidnapping, aggravated sexual assault, aggravated arson, aggravated burglary, aggravated robbery, and felony discharge of a firearm.
Additionally, a 14 or 15 year old can be charged as an adult for aggravated murder, murder, or an attempt to commit those crimes.
Even if a prosecutor exercises his discretion to charge a minor as an adult for one of these crimes, a defense attorney can petition the juvenile court to retain its jurisdiction so that the minor can take advantage of the services provided by the juvenile court system rather than be put in an adult prison facility.
We are experienced juvenile criminal defense attorneys who know how to keep kids from being forced through the adult criminal system. Give us a call if your child may be facing getting charged as an adult.
]]>Utah is a great place to hunt and for the most part has a system set up that allows sportsmen enough game to pursue while at the same time protecting game for future generations of hunters. The State of Utah has preserved game through its creation of the Division of Wildlife Resources and the Wildlife Board which are entrusted with protecting, propagating, managing, conserving, and distributing protected wildlife.
The Utah Legislature has given the Wildlife Board broach policymaking authority to carry out its purpose and has designated all wildlife that is not privately owned “property of the state”. Utah Code 23-13-3. Under its granted authority to govern wildlife, the Division of Wildlife Resources has the power to bring both criminal and civil proceedings for violations of state wildlife law and the rules, proclamations, and orders of the Wildlife Board.
Anybody who wishes to hunt or fish in Utah is subject to Utah’s statutes that govern the State’s Wildlife Resources and to the Wildlife Board’s rules…and there are a lot of them.
The Wildlife Board has done a pretty good job in compiling state law and its own rules and regulations into guidebooks. Hunters and fishermen should know those guidebooks like the back of their hand before heading out to pursue their game or catch their fish. The reason is because violating even the least serious of these rules is a criminal infraction and for more serious violations individuals can be convicted of a felony, serve time in jail or prison, and lose their hunting and fishing privileges.
In addition to the guidebooks release each year by the Wildlife Board, sportsmen can read the laws and rules as written. The statutes that govern wildlife in Utah are located in Utah Code Title 23. The administrative rules written and enforced by the Wildlife Board can be found conveniently on its website and are located in Utah’s Administrative Rules > Natural Resources > Wildlife Resources.
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