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Defendant no shows

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October 05, 2004, 14:13
Brooke Robb
Defendant no shows
Defendant enters 1st half of a plea and is told to return for sentencing. He does not appear. The Defendant wasn't sentenced in absentia, he was bond forfeited and the case was left pending until he was arrested. It seems obvious that the state can revoke its plea offer. Can the State now force the case to trial? Can the State reindict on a higher offense? It seems we are in the middle of a trial so to speak--should the state ask for a new trial? If so, are there double jeopardy consequences?
October 05, 2004, 15:35
david curl
Looks like a lot depends on whether the plea agreement (as opposed to the plea itself) was "accepted" by the trial court. Ortiz v. State, 933 S.W.2d 102 (Tex. Crim. App. 1996). If your judge hasn't accepted the agreement, I think he could reject the plea bargain.
October 05, 2004, 16:48
Tim Cole
Sounds to me like the plea had already been accepted if the case was simply reset for sentencing. We have a way of dealing with this issue: any defendant who wants to enter a guilty plea but remain out of jail until sentenced at some future date must agree to make it part of the plea that if he fails to appear for the sentencing, the judge may then sentence to any term within the punishment range. Had a guy once who pled to 15 years on Friday but wanted to stay out of jail for the weekend, then failed to show up on Monday. Result: 50 years. Upheld on appeal as part of the plea bargain. Try it; it works.
October 10, 2004, 08:10
Tim, could you please email the form you use on the defendant who wants to plead now but be sentenced at a later date? ( I would also like the citation to the appeal so I can convince my Judge.....Or you may reach me at the Tarrant County DA office 817.884.1995. Thanks
October 11, 2004, 09:03
Tim Cole
No problem.
October 11, 2004, 09:07
At least one Gregg County trial judge orally warns defendants who plead guilty, but ask for a separate sentencing date, that the plea agreement will be forfeited if the defendants fail to reappear on the scheduled date of sentencing.

The judge always enforces this rule as a rule of her court; and while the defendants rarely like the result, I don't even recall anyone challenging the rule on appeal.
October 11, 2004, 11:41
Tim Cole
Our approach is more than just a withdrawal of the plea agreement. We make it part of the plea that the sentence becomes open to the full range if the defendant fails to reappear. The defendant is admonished as to this being part of the plea during the first hearing, then if he fails to return, the plea becomes an open plea to the judge. BUT the defendant cannot withdraw his plea. I think if you don't make it part of the plea then the defendant is not bound by his original guilty plea if the judge refuses to go along with the plea.
October 11, 2004, 11:46
Mark Edwards
Tim, do you have any special written admonishments about this? Or do you just announce that it is part of the plea agreement?
October 11, 2004, 12:01
Tim Cole
Nothing in writing at this point, although I think that would be a good idea. We just have not made it a part of our written plea memorandum. The judge asks the defendant during the original plea hearing if he understands that part of his plea requires him to return on the date of the sentencing hearing, and that if he fails to do so, he will then be subject to the entire range of punishment, then he repeats the admonishment of the range of punishment. The judge makes absolutely sure that the defendant expresses his understanding of the deal and the potential punishment range on the record. So far, we've only had one guy who failed to come back and the judge nailed him.
October 11, 2004, 13:30
Martin Peterson
Don't know which appellate case Tim had, but it looks to me like Montgomery, No. 03-96-504-CR (10-23-97) could be cited on this issue (though it is an unpublished opinion). I think conditioning the plea offer on a certain set of facts is a great idea. The caveat I would offer about seeking withdrawal of the plea at sentencing is you might not be able to prove the case because of the delay, so be careful what you ask for. Punishment in accordance with the original recommendation may be better than ending up with nothing- which is where we ended up on a case in which the judge as a matter of course said he was not accepting the rec and permitted a withdrawal before ascertaining the net effect.
October 11, 2004, 15:33
Tim Cole
I agree with you, Martin. Allowing the defendant to withdraw his plea really just rewards him for not showing up and doesn't give the state the benefit of the deal. Anyway, there's no need to do it that way because it CAN be made part of the plea bargain. If they want the delay in sentencing badly enough (and they ALWAYS do) they will agree to this condition. My case was Reeves v. State, No. 03-02-00165-CR, Austin Court of Appeals, August 30, 2002, also unpublished. However, Montgomery may be the better case because in my case the defense attorney filed an Anders brief on the issue on appeal.
October 11, 2004, 18:52
Thanks for the reply. We just got a guilty this afternoon on a D who no-showed his sentencing back in Jan. 03. When the deputies arrested him in September 03, they had to go in after him. He shot the lead officer through and through. The jury found him guilty of atttempted capital. The deputy is doing fine. No word on the defendant. Best part of the trial? When I discovered that his girlfriend, her sister-in-law and his sister had active warrants. The bailiff took them into custody just after lunch.
October 13, 2004, 15:25
We do it in writing as part of an "Agreement for Personal Recognizance Bond." When the plea bargain is reached, the court takes the plea under advisement, and the defendant signs a stipulation in which he states in writing that he understands that his failure to appear for a PSI or his punishment hearing will result in the court's authorization to sentence him within the full range of punishment and refuse to allow him to withdraw his plea.

I especially would do it in writing, so that later on you have a document you can point to without having to go back to the court reporter's records. Your case may not come back up for months if the defendant absconds.
October 13, 2004, 18:10
Tim Cole
Yeah, I agree it probably should be in writing. I really also like your idea of making it a condition of the plea that the defendant show up for the PSI. Had not thought of that.
October 14, 2004, 14:33
Having them agree to such a provision will give you a completely differenct reaction to the defendant's failure to comply with the PSI or show up for punishment. Rather than grinding you teeth in frustration, you will be rubbing your hands with glee.
October 26, 2004, 15:16
david curl
Not sure if this guy had a plea agreement but I was impressed that they weclomed him back with a party.