If you decide to prosecute [not just punish under 12.44 (a)] a state jail felony as a Class A, how do you ordinarily handle it? Do you indict and then reduce as part of the plea bargain or do you proceed on an information from the very beginning? Is there something that you put in your charging instrument to indicate that you are proceeding under 12.44(b)?
Thanks for your experiences.
We indict (or, if agreed to by the defendant, file a felony information) for the SJF and then, in the plea agreement, indicate we are proceding under sec. 12.44(b). The judgement should also clearly indicate the proper subsection to avoid creating a judgment for a felony.
My judge today questioned whether she had jurisdiction to hear a case being prosecuted as a misdemeanor under 12.44(b). Art. 4.06 seems to apply, but arguably the misdemeanor was not "included in the indictment," but rather was created by the "magic" JB has referred to. Anyone else had this question arise?
For what it's worth, the procedure JB suggests seems to be implicitly adopted by the office of court administration in their standardized judgment forms. In the box for the degree of offense, the drop down field has selections for 12.44-type dispositions.
(this post should not be taken as any indication that I believe the designer of the form had any clear idea of what he/she was doing, as I think the forms are flawed in a number of ways, but in this particular whoever approved the form must concur that the procedure is proper, at any rate.)
Thanks, Wes, I think. We helped design the forms, as they were adopted from forms used in Williamson County. We've never had anyone complain. At least there have been no complaints about the form. Seems that some defendants think our punishments are too tough, but I guess that's a whole 'nother subject.
I think the forms are fine on the legal requirements. My issues with the forms are more stylistic/format nitpicks. For example, there is no space on the front of the form for a file stamp, so the stamp is often placed on top of the text, which makes it hard to read.
|Powered by Social Strata|
© TDCAA, 2001. All Rights Reserved.