Plea in Abeyance in Utah: Eligibility, Conditions, and Dismissal

A plea in abeyance in Utah is a negotiated resolution where you plead guilty or no contest in court, but the judge holds that plea without entering a conviction. Complete every condition the court sets within the agreed timeframe and the case can be dismissed. Fail, and the court enters the conviction on the plea you already gave, without a trial. The process runs under Utah Code Chapter 77-2a, requires agreement from both the prosecutor and the judge, and carries hard exclusions and immigration risks that trip people up regularly.

How the Plea Is Held and Then Resolved

This is not diversion. You actually enter a guilty or no-contest plea on the record. The statute defines the arrangement as “an order by a court, upon motion of the prosecuting attorney and the defendant, accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment of conviction against the defendant nor imposing sentence.”¹

Both sides must want it. A prosecutor can refuse to offer one, and a judge can reject an agreement even when both sides consent. If a victim objects or the court believes the deal doesn’t serve the interests of justice, the judge can decline to approve it.

A plea in abeyance is not the same thing as expungement. Expungement is a separate process you pursue after a case is resolved. A plea in abeyance is the resolution itself, structured so that success leads to dismissal instead of a conviction.

Who Qualifies and What Is Excluded

Two categories are barred outright. Under Utah Code 77-2a-3(8), no plea may be held in abeyance for a sexual offense against a child under 14, or for any DUI-related violation, including standard DUI under Section 41-6a-502, metabolite DUI, automobile homicide, and related impaired driving charges.² The DUI bar catches people off guard. If someone told you a plea in abeyance might work on a Utah DUI charge, that advice contradicts the statute.

Outside those exclusions, eligibility depends on the prosecutor. Class B and Class C misdemeanors, like shoplifting or minor drug possession, are the most common candidates. First-time offenders without a violent history have the strongest position at the negotiating table. Felonies are harder to negotiate but not categorically barred, unless they fall into the excluded categories above. Serious violent felonies, repeat offenses, and cases with significant victim harm rarely draw a plea-in-abeyance offer.

Domestic violence is often assumed to be excluded. It isn’t. Utah Code 77-36-2.7 specifically allows courts to hold a plea in abeyance for domestic violence offenses when treatment or other conditions are part of the agreement, with dismissal available only after full compliance.³ Prosecutors may still be reluctant, but nothing in the statute forbids it.

How Long the Agreement Lasts

The statute caps the abeyance period based on the seriousness of the charge:

Misdemeanors: up to 18 months for any class.
Felonies: up to three years for any degree, or for any combination of misdemeanors and felonies.
Problem-solving courts: up to two years for misdemeanors when the agreement requires participation in a Judicial Council-approved program, such as drug court or mental health court.

These ceilings come from Utah Code 77-2a-2(5) and (6).⁴ Most misdemeanor agreements run about a year in practice, but the court can set any period up to the statutory maximum. If the Department of Corrections supervises, the abeyance period may be shortened to match probation guidelines.

Conditions You Will Need to Meet

The agreement spells out everything you must complete. Conditions vary by offense and defendant, but common ones include:

Court-ordered classes or treatment, such as substance abuse education, theft prevention, anger management, or mental health counseling.
Restitution to any victim who suffered financial loss. Utah Code 77-2a-1(5) defines restitution by reference to Section 77-38b-102, the general restitution statute.¹
A plea in abeyance fee plus surcharge. The statute doesn’t set a flat dollar amount. The fee and surcharge combined cannot exceed the maximum fine and surcharge you would have faced if convicted and sentenced on the same offense. For a Class B misdemeanor with a $1,000 maximum fine, the fee can’t exceed that amount; for a Class C misdemeanor, the ceiling is $750.²
Community service.
Drug and alcohol testing, sometimes random, often lasting the length of the abeyance period.
Supervision by the Division of Adult Probation and Parole, which functions much like probation.²

For felony cases, or any combination of misdemeanors and felonies, the agreement must be in writing and signed by the prosecutor, defendant, and defense counsel in the presence of the court.⁴

What Happens If You Violate the Agreement

If the prosecutor or the court learns of a violation, the court can issue an order to show cause requiring you to appear and explain why the agreement should not be terminated. Under Utah Code 77-2a-4(1), the judge then holds an evidentiary hearing. If the court finds you failed to “substantially comply” with any term, it can terminate the agreement, enter judgment of conviction on the plea you already gave, and impose sentence.⁵

The “substantial compliance” standard gives the court room to separate minor slips from real defiance. A single missed check-in might get you a warning or modified conditions. A new arrest or repeated failed drug tests is different. Once the court terminates the agreement, you have a conviction. No statutory mechanism exists to reinstate a revoked plea in abeyance.

One detail people miss: if the violation involved committing a new crime, that new offense can be prosecuted separately. Terminating the plea in abeyance and entering conviction does not bar a separate prosecution for whatever you did that triggered the violation.⁵ Two convictions can result: the original charge and the new one.

Any amount you already paid as a plea in abeyance fee is credited against whatever fine the court imposes at sentencing.⁵

What Successful Completion Actually Means

Finishing every condition does not automatically dismiss your case. Utah Code 77-2a-3(3) gives the court three possible outcomes, and the one that applies should be written into the agreement from the start:²

Plea withdrawal and dismissal. The court lets you withdraw the plea and dismisses the case. No conviction is entered. This is the most common and most favorable outcome.
Reduced charge with conviction. The court reduces the offense, enters a conviction on the lesser charge, and sentences you on it. You still have a conviction, just at a lower level.
Expungement through a problem-solving court. If you complete a Judicial Council-certified problem-solving court program and the court dismisses the case, the court can issue an expungement order for all records of the offense at the same time.

Read the agreement before you sign. If it calls for a charge reduction rather than dismissal, you are agreeing to a conviction on your record.

Immigration Consequences for Non-Citizens

This is where a plea in abeyance can become a trap. Federal immigration law uses its own definition of “conviction” that does not care whether Utah treats your case as dismissed.

Under 8 U.S.C. 1101(a)(48)(A), a conviction for immigration purposes exists when a person has entered a guilty plea or been found guilty and the court has “ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”⁶ Pleading guilty in court satisfies the first prong immediately. Fees, treatment orders, drug testing, or reporting to a probation officer likely satisfy the second.

Federal immigration authorities generally do not accept what the Board of Immigration Appeals calls “rehabilitative relief” as eliminating a conviction. Even after the state court withdraws your plea and dismisses the case, immigration authorities can still treat the original plea plus the court-imposed conditions as a conviction for deportation, removal, or inadmissibility purposes. If you are a non-citizen facing criminal charges in Utah, get advice from an immigration attorney before entering any plea. The exposure includes deportation, denial of naturalization, and bars to reentry.

Clearing the Record After Dismissal

Even after a successful plea in abeyance ends in dismissal, the arrest and case records do not vanish from public view. Utah’s expungement process under Title 77, Chapter 40a provides a path to seal those records, but the waiting periods are longer than most people expect.

For automatic expungement, where the court system starts the process without a petition from you, Utah Code 77-40a-205 sets specific waiting periods after a plea-in-abeyance dismissal:

Class C misdemeanor or infraction: at least five years after dismissal.
Class B misdemeanor: at least six years after dismissal.
Class A misdemeanor (controlled substance possession): at least seven years after dismissal.

These apply only to eligible offenses. A long list is excluded from automatic expungement entirely, including domestic violence offenses, weapons offenses, offenses against individuals, felonies, and Class A misdemeanors other than certain drug possession charges.⁷ If your charge falls into an excluded category, you would need to petition the court for expungement under Part 3 of the statute rather than rely on the automatic track.

Between dismissal and expungement, the arrest and case records stay visible in court databases, which matters for employment, housing, and professional licensing. A dismissed case is far better than a conviction, and you can truthfully say you were not convicted, but a background check can still surface the arrest and charge. Under the federal Fair Credit Reporting Act, consumer reporting agencies generally cannot include non-conviction records more than seven years old in a background report.⁸ Even after expungement, private background check companies sometimes retain outdated records. If an expunged case appears on a report, dispute it with the company and provide your expungement documentation.

1
Utah Legislature. Utah Code 77-2a-1 – Definitions
2
Utah Legislature. Utah Code 77-2a-3 – Manner of Entry of Plea, Powers of Court, Expungement
3
Utah Legislature. Utah Code 77-36-2.7 – Sentencing, Dismissal, and Related Provisions for Domestic Violence Cases
4
Utah Legislature. Utah Code Chapter 2a – Pleas in Abeyance
5
Utah Legislature. Utah Code 77-2a-4 – Violation of Plea in Abeyance Agreement, Hearing, Entry of Judgment and Imposition of Sentence, Subsequent Prosecutions
6
Office of the Law Revision Counsel. 8 USC 1101 – Definitions
7
Utah Legislature. Utah Code Chapter 40a – Expungement of Criminal Records
8
Office of the Law Revision Counsel. 15 USC 1681c – Requirements on Consumer Reporting Agencies