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discharge from "straight" probation. Conviction or not? Login/Join 
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Does discharge from "Straight" probation result in a conviction? I believe it can be.... I have a Defendant who completed felony probation for Assault of a Family Member - impeding airway. On the "order of discharge", there are two pre-printed blocks. One states, "Defendant discharged from Probation; or" the next one states, "Defendant discharged from probation. The Court FURTHER ORDERS that the Defendant's plea be withdrawn and the verdict set aside. The Court FURTHER ORDERS.....", Since the 1st block was checked, I believe it is still a conviction, suitable for enhancement. Opinions?
 
Posts: 106 | Location: Kingsville, Texas, USA | Registered: July 19, 2011Reply With QuoteReport This Post
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It’s still a conviction, but not a “final conviction” for enhancement purposes.
 
Posts: 174 | Location: Huntsville, TX | Registered: June 12, 2012Reply With QuoteReport This Post
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Wait, sorry. Didn’t see this was a special offense (Family Violence). Yes, I think it counts for enhancement purposes because we’re not dealing with Chapter 12 enhancements.
 
Posts: 174 | Location: Huntsville, TX | Registered: June 12, 2012Reply With QuoteReport This Post
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OK, so we are saying that 1. it IS a conviction for use when enhancing new family violence offenses but 2. NOT a "final" conviction that can be used for enhancing under 12.42?
 
Posts: 106 | Location: Kingsville, Texas, USA | Registered: July 19, 2011Reply With QuoteReport This Post
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Ex parte Jeremy Pue. https://law.justia.com/cases/t...18/wr-85-447-01.html - this supports that interpretation (p.7). So, why the different wording? Is there any practical difference? Sorry, just had some time and am trying a little higher thinking.....
 
Posts: 106 | Location: Kingsville, Texas, USA | Registered: July 19, 2011Reply With QuoteReport This Post
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Probation set-asides, aka "judicial clemency," have been on the books for decades. The current version is CCP Art. 42A.701(f). They are rarely used, but if a judge sets aside a probation, it cannot be used as the basis for, say, a felon in possession of a weapon charge.

A 2017 bill required set-aside language to be included in all plea paperwork, judgments, and probation forms, in an effort to increase their use. #smartoncrime
 
Posts: 2393 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
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Originally posted by Shannon Edmonds:
Probation set-asides, aka "judicial clemency," have been on the books for decades. The current version is CCP Art. 42A.701(f). They are rarely used...

Your mileage may vary. In one county where I practiced, the set aside language was a part of every probation discharge, even for cases where it does not apply, e.g. DWI. In my current county, we had a rash of them a few years ago after the defense bar started talking about them.
 
Posts: 2127 | Location: McKinney, Texas, USA | Registered: February 15, 2001Reply With QuoteReport This Post
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