Defendant was given probation in a plea agreement here (uncooperative victim). Def went to next county on their detainer; went to trial on similar charges but different victim. Def received prison sentence. Now, he wants us to "change" our sentence to prison so it runs cc with other county. If we agree, what is our methodology? Def never got out of jail, was never able to be on probation so we don't have any violations. Our dispo was nearly a year ago.
Since the "contract" was formed between the court and the defendant, it is actually the court that must agree to a modification. While the authority to modify or terminate the conditions (and period) of supervision seems to be tied to a violation under the statute, it would also seem that if the parties were to file an agreed motion to terminate the community supervision order and proceed to imposition of the sentence that you could get a valid order (judgment and sentence)entered, even without a motion to revoke and without any finding of a violation. Be sure to get the judge on board before doing anything.
I would not recommend deliberately making an agreement to revoke a probation without statutory authority. Sounds like the sort of legal shenanigans that could be viewed as a fraud on the court, even if done with knowledge of the court.
Several years ago, a judge was reprimanded for giving a defendant "credit" for time he never served. The judicial commission did not think such a violation of the law was ethical.
There is a big difference between asking a defendant to waive some right as part of a plea agreement and simply inventing a process outside the law.
Has this defendant failed to report as ordered?
I believe TDCJ has a mechanism for people to "report" while they are in the pen on another sentence.
Don't overthink this. Surely the defendant has violated at least one condition of community supervision (failure to pay something, failure to perform community service). Even if the defendant would usually be able to present a "defense" that compliance was impossible, he is not required to present that, and in your case would most likely agree to a plea of true.
You don't say how long his probation runs or how long his TDC sentence is, but if he's like a lot of inmates, he'll be getting out of the joint pretty soon, in line with the legislature's desire to be "smart on crime." If he's released from prison before his probation runs out, the state is probably better off having him on probation.
What does the State gain by giving him concurrent time? If he has two victims in different counties, perhaps he needs extra supervision when he gets out.
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