Utah Prosecutors Must Prove Violations of a Plea in Abeyance

September 8th, 2014 by | No Comments

Layton City v. Stevenson

Violations of a Plea in Abeyance

Every plea in abeyance last for a definite period of time.

Recently the Utah Supreme Court addressed the issue of a how a prosecutor proves a violation of a plea in abeyance agreement in the case Layton City v. Stevenson.  A plea in abeyance agreement is an agreement between the prosecutor and a criminal defendant wherein the defendant typically agrees to not violate the law for a specific period of time, pay a fee, and other conditions, and in exchange the prosecutor agrees to dismiss the case at the end of the specified time period.  This is advantageous to criminal defendants because if the successfully completed it will not become a conviction on a criminal record.

In the Stevenson case, the defendant had entered into a plea in abeyance agreement with Layton City wherein he entered a no contest plea to patronizing a prostitute. The term of his abeyance agreement was 18 months during which time he was could have no violations of the law other than minor traffic violations, pay a $400 fee, and submit to HIV testing. if he did not comply with the terms of the agreement the court could terminate the agreement.

Six months after he entered his plea in abeyance he was charged in Sunset City with soliciting a prostitute but he was able to get a diversion in that case. A diversion is an agreement between the defendant and the prosecutor which does not require that the defendant enter a plea. Instead the case is dismissed without any plea after the defendant fulfills agreed upon conditions.

The district court held an evidentiary hearing wherein evidence was presented that Stevenson offered rent relief to his female tenant in exchange for sex.  Stevenson denied the allegation.  It was a he-said she-said case and the court found that there were merely allegations of misconduct and what was required was proof of a conviction.  Consequently, the district court dismissed the case with prejudice. The Court of Appeals reversed the district court’s decision and found that the prosecution does not have to present evidence of a conviction to show a violation of a plea in abeyance agreement.

The Utah Supreme Court agreed with the Court of Appeals in this regard but went further in its opinion finding also that the appropriate standard of proof in such cases is “preponderance of evidence” rather than “beyond a reasonable doubt” as applies in the initial criminal prosecution. The reason for this is because proving a violation of a plea in abeyance agreement is akin to proving a violation of probation for a defendant who has been convicted of a crime.  In conjunction with this finding the court also found that just like a probation violation case there is no presumption of innocence in a violation of plea in abeyance case.

The Utah Supreme Court remanded the case to the district court to determine whether the prosecutor could satisfy the preponderance of evidence standard.

This case does not help criminal defendants. The standard of proof is so low and now that the prosecutor only has to show a violation of the law and not a conviction of the law these cases are going to be too easy for prosecutors.

 

Civil Penalties for Shoplifting Cases in Provo & Orem

June 17th, 2014 by | 1 Comment

Criminal and Civil Law in Utah

There are two main branches of law in Utah, criminal law and civil law.  Criminal law is the laws governing behaviors that are prohibited by society and the punishments for violations of those laws.  Private individuals don’t bring criminal charges against violators of the law; instead, the ability to charge a person with violation of a criminal law is given to state officials such as county and city prosecutors. Besides fines, the main punishment for violation of a criminal law is jail or prison.  Civil law is the laws allowing individuals to seek redress for private wrongs committed against them.  For example, if two people make a contract with each other and one of them violates the contract, the other person can ask a court to fix the violation by awarding the non-violating party money.

Sometimes criminal and civil law overlap.  Assault can be charged as a criminal charge or a private person can sue another person for assault under civil laws.  Retail theft, more commonly referred to as shoplifting, is another law where there are both criminal and civil penalties.

Shoplifters are Civilly Liable to Stores for Theft

Shoplifting violations occur in Provo and Orem when someone takes property from a store without intending to pay for the property.  Shoplifting is usually charged as a class B misdemeanor which can result in a 180 days in jail and $1,000 fine.  The criminal penalties are better know and understood than the civil penalties.  Utah Code § 78B-3-108 makes a shoplifter civilly liable to a retail store for the crime of retail theft.  This law allows the retail store to receive damages for the theft.  Damages are the monetary losses suffered by the store as a result of the crime.  Utah Code § 78B-3-108 also makes the shoplifter responsible to pay a penalty, courts costs, and attorney fees.  The stores receives this money whereas in a criminal case the fine would be paid to the court.

Even though a person who shoplifts is liable to pay the store for the crime, he or she is not obligated to do so until the store receives a judgment against the person.  This requires the filing of a lawsuit and a judge ordering the person to pay.  However, most stores do not follow this course of action.  Instead, the store will send a demand letter requesting that the person pay so the store will not have to file a lawsuit.

Contact a Provo Orem Area Lawyer

If you have been charged with shoplifting in the Provo and Orem area, and you have received a demand letter from the retail store, call us to speak with a lawyer today.  Our lawyers will help you with both your criminal and civil cases related to the theft.  Call 801.800.8246 to speak with us today.

Sex Offender Registration a Collateral Consequence in Utah

May 21st, 2014 by | No Comments

When facing a serious criminal charge in Utah County like child pornography, unlawful sexual relations with a minor, and other sex crimes, the accused want to understand what are all of the potential consequences of a conviction. Knowing the consequences of a conviction will aid the accused in determining whether to enter into a  plea agreement or go to trial.

The Utah Supreme Court just decided State v. Trotter, which relieves lawyers of the responsibility of notifying a client that a conviction could carry with it a requirement to register as a sex offender.  In Trotter the defendant had sex with a couple of minor girls between the ages of 14 and 16 when he was 20 years old.  His attorney was able to negotiate a plead deal to reduce the charges to a class A misdemeanor, but as a result of his plea he was required to register as a sex offender. He hired a new attorney and he filed a motion to withdraw Trotter’s guilty plea on grounds that Trotter’s plea was not “knowing and voluntary” because he was not notified of the sex offender registration requirements.  Trotter’s lawyer argued that having to register as a sex offender is a “direct consequence” of his guilty plea as opposed to a “collateral consequence,” and therefore, the court and Trotter’s first attorney should have notified him of that consequence.  A defendant’s plea can only be “knowing and voluntary” if he was aware of all direct consequences of his plea.

The Utah Supreme Court analyzed whether the registration requirement is collateral or direct and noted that “a consequence is collateral if it is unrelated to the length and nature of the sentence imposed on the basis of the plea.”  Under this definition the court found that the registration requirement is collateral because the court has nothing to do with it.  It is a civil remedy that is imposed by statute and which cannot be removed by the court in the criminal case.  It is much like a DUI defendant who loses his driver’s license after he is convicted of DUI because the Driver’s License Division takes it away.

The court also considered whether the registration requirement falls under the same exception as deportation.  The United States Supreme Court has ruled that courts must notify criminal defendants that a guilty plea could affect their immigration status. The Utah Supremes did not agree that registration as a sex offender and deportation are akin, finding that deportation is much more serious of a consequence, and therefore, unique in its exception.

Even though we aren’t constitutionally required to notify our clients of collateral consequences, we make every effort to make them aware of as many collateral consequences as possible.

Utah Texting While Driving Law Changes

April 4th, 2014 by | No Comments

Current Texting Law in Utah

The law in Utah regarding texting and driving is governed by Utah Code § 41-6a-1716.  Currently, the law restricts individuals from using a cellphone to text message, email, enter any data, and manipulate an application.  The prohibitions include using a phone to read texts, email, or internet pages.  There are exceptions to these prohibitions.  Individuals can use the phone when making or receiving a telephone call, when using it for GPS and other navigation services, during a medical emergency, when reporting a safety hazard or requesting assistance relating to a safety hazard, when reporting criminal activity or requesting assistance relating to a criminal activity, when providing roadside or medical assistance, or to operate hands-free or voice operated technology, and to operate a system that is physically or electronically integrated into the motor vehicle.

Changes to the Handheld Wireless Device Law

Because there are several exceptions to the texting law, the Utah State Legislature recently amended the law.  The amended law, which goes into effect on May 13, 2014, eliminates some of the exceptions to using a cellphone while driving and enlarges the prohibitions on using a “handheld wireless device.”  A “handheld wireless device” is defined as a handheld device used for the transfer of information without the use of electrical conductors or wires and includes a wireless telephone, text messaging device, laptop, or any else similar to those items.

The amended law removes some of the exceptions to the prohibitions.  A person can no longer use a cell phone to make or receive a telephone call while driving or to use it for global positioning or navigation services.  But, the exceptions now include using the “handheld wireless device” for voice communication and viewing GPS or navigation device or application.  Essentially, the only reasons to use a cellphone while driving are in emergencies, to activate a hands-free voice activated system, and to look at it for navigation purposes.  Using it outside of the exceptions will result in a misdemeanor criminal charge.

Find Out If Your Actions Fall Under The Exceptions.

The amended law will allow police officers to more easily pull individuals over for using their cellphones while driving.  If you were pulled over for using your cellphone while driving, please call 801.900.3717, and find out if your cellphone use falls under one of the exceptions.  Provo Criminal Defense Lawyers are available to speak to you today.

What does it Mean to Book and Release?

March 26th, 2014 by | 10 Comments

If you have been charged with a crime in a justice court or a district court in Utah County, you may have received a notice that you have to go to the jail located in Spanish Fork to “book and release.”  Perhaps you’re worried about this because you don’t know exactly what it means.

“Book and release” is the term used for when a person charged with a crime checks in at the jail.  The jail records the defendant’s personal information and assigned the defendant what is known as an offense tracking number (OTN).  The OTN is the method used by law enforcement and the courts to track the defendant’s status in his case.

The book and release process is not very involved.  The defendant checks in at the jail and a deputy sheriff records the defendants information and takes his fingerprints.  The deputy sheriff gives the defendant some paperwork which he is then required to turn in to the court to prove that he booked into the jail.

That’s about it.  It isn’t a big deal and just about every criminal defendant in Utah County is required to go through the process.

Reasonable Expectation of Privacy

February 21st, 2014 by | No Comments

The Fourth Amendment provides all people should be free from unreasonable searches and seizures by law enforcement officers. In order for a person’s Fourth Amendment rights to apply however, there must be a reasonable expectation of privacy with respect to the place searched or the item seized. Whether or not a person has a reasonable expectation of privacy is determined based on a totality of circumstances in any given case, but generally a person does have an expectation of privacy under the following circumstances:

  1. The person owned or had a right to possess the place searched.
  2. The place searched was in fact the person’s home, whether or not the person actually owned the property or had a right to possess it.
  3. The person was an overnight guest of the owner of the property searched.

Thus if you are living in the place searched, it is your home, or you are an overnight guest of the place, you most likely have a reasonable expectation of privacy and the Fourth Amendment rights against search and seizure apply. A person does not have a reasonable expectation of privacy in objects or property which are public in nature.

Examples of No Reasonable Expectation of Privacy

Court’s have held one does not have a reasonable expectation of privacy in the following:

  • Sound of one’s voice.
  • One’s handwriting.
  • Paint on the outside of one’s vehicle.
  • Account records held by a bank.
  • The location of one’s vehicle on public roads or its arrival at a private residence.
  • Areas outside the home and related buildings, such as a barn.
  • Garbage left for collection.
  • Land visible from a public place, even from a plane or helicopter.
  • The smell of one’s car or luggage.

Some of these instances cited above might surprise most people such as the fact there is no privacy to bank records, although there are some exceptions to that rule. Additionally, police going through garbage is a common scenario but your garbage does not enjoy Fourth Amendment protections. Often in drug manufacturing cases, the police will have gone through a defendant’s garbage and discovered evidence which later cannot be suppressed.

Provo Utah Criminal Defense Attorney

If you believe your rights of privacy and Fourth Amendment rights have been violated in a police search or seizure, we would like to help and hold the state accountable. A Provo Utah Criminal Defense Attorney is standing by to take your call, answer your email, and help you right away.

Steve Turley Fraud Case – Preliminary Hearing Begins

February 11th, 2014 by | Comments Off on Steve Turley Fraud Case – Preliminary Hearing Begins

Many people in Utah County have been closely following the Steve Turley Fraud Case. Originally charge in 2011, this case has been long outstanding and continues to garner a lot of media attention. For those of you who do not know, Steve Turley is a former Provo City Councilman initially charged with 10 felonies relating to fraud in his business dealings. The once city councilman is accused of all kings of fraud dealings including exploitation of a vulnerable adult. One alleged victim in particular claims Mr. Turley convinced him/her to quit claim their property over to Mr. Turley and in exchange he would deed back another property. The accusations are Mr. Turley never exchanged the property and instead borrowed against the new property deeded to him. As a result, the property is said to have been foreclosed and the alleged victim suffered financial damages as a result.

Last year, 3 of the 10 charges against Mr. Turley were dismissed by the judge in the case because the statute of limitations on the three particular counts run prior to the state filing any charges. Just this week, the case finally reached the preliminary hearing stage and multiple witnesses were called to give testimony against Mr. Turley. The initial witnesses provided by the prosecution told stories of losing assets and being financially ruined as a result of Mr. Turley’s alleged misconduct. Following the preliminary hearing this week, the judge must decide whether there is sufficient evidence to bind the case over for trial on each of the remaining charges. Most legal experts agree the case will be bound over and Mr. Turley will be facing a hard trial as it doesn’t seem the prosecution is willing to provide Mr. Turley with much of a plea agreement at this stage of the case.

Provo Utah Fraud Defense Lawyer

Fraud charges are unfortunately common in Utah and our law firm  has dealt with many cases similar to Mr. Turley’s case. We have seen many different types of facts arise in fraud cases including instances where charges are not justified but rather are the product of disgruntled business partners or other third parties. Whatever the case may be, we strongly believe in providing zealous representation in our client’s defense. If you have been charged with fraud, theft, or any other related white collar crime, call or meet with a Provo Utah Fraud Defense Lawyer in our office today.

 

Provo Criminal Tresspass Lawyer

January 8th, 2014 by | Comments Off on Provo Criminal Tresspass Lawyer

Property Laws in Provo

Property rights are very important legal concepts in Utah law.  There are many different types of laws in Utah that protect one’s right to possess and use property as he or she sees fit.  One such law is found in Utah Code 76-6-206.  This section of the Utah Code prohibits the trespassing of one person upon the property of another.  The title of the code is entitled “Criminal Trespass.”  The violation of criminal trespass is probably one of the most common property crimes aside from retail theft.  It is important for those charged with criminal trespass to contact a criminal trespass lawyer from Criminal Defense Provo.

The Elements of Utah’s Criminal Trespass Statute

In order for a person to be found guilty of criminal trespass in Utah, a person must first enter or remain unlawfully upon property and either:
1.)  intend to cause annoyance or injury to any person or damage to any property;
2.)  intend to commit any crime, other than theft or a felony; or
3.)  is reckless as to whether his or her presence will cause fear for the safety of another.

A person can also be convicted of criminal trespass if the person, knowing his or her entry or presence is unlawful, enters or remains on property as to which notice against entering is given by either:
1.)  personal communication to the actor by the owner or someone with apparent authority to act for the owner;
2.)  fencing or other enclosure obviously designed to exclude intruders; or
3.)  posting of signs reasonably likely to come to the attention of intruders.

Finally, a person violates Utah’s criminal trespass statute by entering a condominium unit in violation of Utah Code Subsection 57-8-7(7).  A violation of criminal trespass is usually charged as a class A misdemeanor, class B misdemeanor, or an infraction.  Because a class A misdemeanor conviction carries a potential penalty of up to one year in jail, it is important for anyone facing charges of criminal trespass in Utah County, Wasatch County, or the surrounding areas to contact a Provo Criminal Defense Lawyer.

Criminal Trespass Defense

If you have been charged with criminal trespass or any other property crime, don’t defend the charges alone.  The criminal justice system is too complicated for a person to handle it alone.  Contact a Provo Criminal Defense Lawyer to fight the charges and protect yourself.  Our consultations can be handled quickly over the phone.  Call us to today at 801.800.8246.

Marijuana Possession Results in Driver’s License Suspension

December 31st, 2013 by | Comments Off on Marijuana Possession Results in Driver’s License Suspension

Potential Penalties of a Marijuana Possession Conviction

Increasingly throughout the United States marijuana possession and consumption is becoming legal.  Many states allow marijuana possession for medicinal purposes.  Other states treat it as a simple violation akin to a traffic violation.  There are even two states (as of the date of this post), Colorado and Washington, that have legalized marijuana for recreational use.  Despite the current trend of increased freedom of marijuana use, Utah law staunchly prohibits its use.  Currently, simple possession of marijuana is a class B misdemeanor, punishable by six months in jail and a $1,000 fine.  It seems unlikely that these penalties will change in the immediate future.  In addition to a fine and possible jail time, other penalties include a substance abuse evaluation, substance abuse treatment, and community service.  Criminal Defense Lawyers in Provo can help those charged with marijuana possession avoid the harshest penalties of a conviction.

Utah Law Imposes Suspensions for Possession Convictions

One penalty of a marijuana conviction that a judge or prosecutor will not tell a defendant he or she faces as a result of a conviction is the suspension of one’s driver’s license.  Utah Code 53-3-220(1)(c) states that the Utah Driver’s License Division shall immediately suspend someone’s license for six months upon receiving  a record of a conviction for marijuana possession.

Although marijuana conviction results in a suspension of one’s license for six months, Criminal Defense Lawyers in Provo can sometimes successfully keep the court from sending a record of a marijuana conviction to the Utah Driver’s License Division.  Additionally, there are ways to negotiate with a prosecutor to keep a conviction from actually being entered onto one’s criminal history.  Each person’s case is different so its important for those facing marijuana charges to hire a Provo Criminal Defense Lawyer before going to court on a drug charge.

Contact a Marijuana Drug Lawyer Today

If you are facing marijuana drug charges in Utah County, Wasatch County, or the surrounding counties in Utah, contact a Provo Criminal Defense Lawyer today.  Our lawyers will help you through the marijuana drug charge process and will do everything we can to help you keep your driver’s license.  Call 801.800.8246 to speak with a lawyer today.

District Courts in Utah County

December 17th, 2013 by | Comments Off on District Courts in Utah County

Utah County has grown considerably over the past 10 years and the court system has grown with it to compensate for the ever increasing number of criminal charges filed, including serious offenses from felonies to class A misdemeanors. Today there are three major locations for the Fourth District Court in Utah County. First, there is the Provo location which has been around the longest and still handles the bulk of the cases filed each year. Not too along ago the Fourth District opened another court location in American Fork to handle more of the Northern Utah County cases. Finally, just recently the Fourth District Court opened a new facility in Spanish Fork serving the southern portion of happy valley. The specific addresses and contact information for each court is located below:

Fourth District Court – Provo
75 East 80 North, Suite 202
American Fork, UT 84003-0986
(801) 756-9654

Fourth District Court – American Fork
125 North 100 West
Provo, UT 84601
(801) 429-1000

Fourth District Court – Spanish Fork
775 West Center
Spanish Fork, UT 84660
(801) 804-4800

If you have been charged with a crime and your case is being prosecuted in any of the district courts, it most likely means you are facing more serious charges either a felony or class A misdemeanor. Everyone facing criminal charges in these courts should have a lawyer with them each step of the way.

Understanding the Utah County Courts

Our law firm is located in Provo, Utah and we make up a team of Provo Criminal Defense Attorneys who understand the local Utah County Courts, the judges, prosecutors, and will help you navigate through a potentially difficult process. An understanding of the local rules and customs of the court can be key in your defense. We have this experience and have helped numerous individuals in defense of their legal rights. If you would like a free consultation right over the phone, call us anytime day or night at 801-800-8246. We look forward to helping.