State v. Caballero

State v. Caballero

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Rogelio E. Caballero,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20050207-CA

F I L E D

(June 3, 2005)

2005 UT App 247

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First District, Logan Department, 941100085

The Honorable Gordon J. Low

Attorneys: Rogelio E. Caballero, Draper, Appellant Pro Se

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Billings, Jackson, and Orme.

PER CURIAM:

Rogelio Caballero appeals the trial court's denial of his motion for a reduction in sentence pursuant to Utah Code section 76-3-402. This is before the court on its own motion for summary disposition based on the lack of a substantial question for review.

Caballero pleaded guilty to the murder of his wife in 1994. In 2004, he filed a motion requesting the court to reduce the charges and sentence as permitted under Utah Code section 76-3-402. See Utah Code Ann. § 76-3-402 (2003). Section 76-3-402 provides:

If the court, having regard to the nature and circumstances of the offense of which the defendant was found guilty and to the history and character of the defendant, concludes it would be unduly harsh to record the conviction as being for that degree of offense established by statute and to sentence the defendant to an alternative normally applicable to that offense, the court may unless otherwise specifically provided by law enter a judgment of conviction for the next lower degree of offense and impose sentence accordingly.

Id. § 76-3-402(1).

Caballero asserted that the circumstances of his offense supported the conclusion that the appropriate charge was manslaughter and requested the trial court to reduce the charge from murder to manslaughter.

However, section 402 permits a trial court to reduce charges only if not "otherwise specifically provided by law." Id. Under Utah Code section 76-3-406, certain crimes are expressly excluded from the trial court's discretion to reduce the charges and sentence. See Utah Code Ann. § 76-3-406 (2003). Section 406 provides that for certain offenses "the court shall not enter a judgment for a lower category of offense," or in any other way reduce the sentence. Id. Murder is among the listed offenses to which the prohibition applies. See id. Thus, the trial court did not have any discretion to reduce Caballero's conviction from murder to manslaughter under section 402. Because Caballero is precluded from relief under section 402, the trial court did not err in denying his motion for such relief.

Accordingly, the trial court's denial of Caballero's motion for relief is affirmed.

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge