§ 76-3-406 — Crimes for which probation, suspension of sentence, lower category of offense, or hospitalization may not be granted.

(1) As used in this section, "attempted child sexual offense" means an attempt to commit a felony that is:
(1)(a) rape of a child as described in Section 76-5-402.1;
(1)(b) object rape of a child as described in Section 76-5-402.3;
(1)(c) sodomy on a child as described in Section 76-5-403.1; or
(1)(d) aggravated sexual abuse of a child as described in Section 76-5-404.3.
(2) Except as provided in Subsection (3), a court may not grant probation, suspend the execution or imposition of a sentence, enter a judgment for a lower category of offense, or order hospitalization, if the effect of which would in any way shorten the prison sentence for:
(2)(a) an actor who commits a capital felony or a first degree felony, or attempts to commit a capital felony or a first degree felony, that is:
(2)(a)(i) aggravated child abuse as described in Section 76-5-109.2;
(2)(a)(ii) child torture as described in Section 76-5-109.4;
(2)(a)(iii) aggravated murder as described in Section 76-5-202;
(2)(a)(iv) murder as described in Section 76-5-203;
(2)(a)(v) child kidnapping as described in Section 76-5-301.1;
(2)(a)(vi) aggravated kidnapping as described in Subsection 76-5-302(3)(b);
(2)(a)(vii) rape as described in Subsection 76-5-402(3)(b), (3)(c), (3)(d), or (4);
(2)(a)(viii) rape of a child as described in Section 76-5-402.1;
(2)(a)(ix) object rape as described in Subsection 76-5-402.2(3)(b), (3)(c), (3)(d), or (4);
(2)(a)(x) object rape of a child as described in Section 76-5-402.3;
(2)(a)(xi) forcible sodomy as described in Subsection 76-5-403(3)(b), (3)(c), (3)(d), or (4);
(2)(a)(xii) sodomy on a child as described in Section 76-5-403.1;
(2)(a)(xiii) forcible sexual abuse as described in Subsection 76-5-404(3)(b)(i) or (ii);
(2)(a)(xiv) aggravated sexual abuse of a child as described in Section 76-5-404.3; or
(2)(a)(xv) aggravated sexual assault as described in Section 76-5-405; or
(2)(b) an offense for which the penalty has been increased under Section 76-3-407, Repeat and habitual sex offenders.
(3) (3)(a) Except as provided in Subsection (3)(b), a court may suspend the execution or imposition of a prison sentence for an actor who is convicted of an attempt to commit a felony described in Subsection (2)(a) if the court:
(3)(a)(i) makes a finding on the record that:
(3)(a)(i)(A) details why it is in the interests of justice not to execute or impose the prison sentence; and
(3)(a)(i)(B) the actor does not pose a significant safety risk to the victim of the attempted crime or the general public; and
(3)(a)(ii) orders the actor to complete the terms and conditions of probation that is supervised by the Department of Corrections.
(3)(b) If a court suspends a sentence for an attempted child sexual offense the court shall follow the provisions described in Section 76-5-406.5.
(4) Except for an offense before the district court in accordance with Section 80-6-502 or 80-6-504, the provisions of this section do not apply if the sentencing court finds that the actor:
(4)(a) was under 18 years old at the time of the offense; and
(4)(b) could have been adjudicated in the juvenile court but for the delayed reporting or delayed filing of the information.
(5) Except as provided in Subsection 77-16a-103(6) or (7), a court may not grant probation, suspend the execution or imposition of a sentence, enter a judgment for a lower category of offense under Section 76-3-402, or order hospitalization under Section 76-3-201 or 77-18-105 or Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition, if the court is prohibited from doing so by this section.

Legislative History

Repealed and Re-enacted by Chapter 193, 2025 General Session