Defendant completes deferred adjudication. Judge "shall" dismiss. (42.12 5(c)). Who has the burden to bring it to the Court's attention - defendant or the State?
My Community Supervision office notifies me when a person rolls off of deferred and I do a dismissal without much effort or thought. I had never thought through the responsibility question. Early discharge is a different story--I tell the defendant to get an attorney to do that. Just a wild guess ---I would say that it is the defendant that must see to it getting dismissed. Judges don't like to do much of anything on their own without motions, orders and such. I don't think there is a hint in the in 42.12 that it is any of a prosecutor's responsibility. I think my C.S.O. just likes to clear her books and I am glad to oblige her.
John C.A. Hansford Co.
Here we leave it up to the def. to request the dismissal.
Does it really matter? If no one requests a dismissal, the community supervision period will nevertheless expire and the person is released from his conditions with no finding of guilt. Once the period is up, the State can't file a motion to adjudicate, so there's no risk there. All the dismissal does is put a period at the end of the sentence (no pun intended). If it's not done, the effect is the same, unless I'm missing something.
So I'd say leave it to the defendant to request it, and if he doesn't, who cares?
Since it is the the judge's responsibility- as brought to his/her attention by the Legislature, no one else has any obligation to do anything in that regard. Obviously someone has to actually type up the order, but only as directed by the court. If the defendant desires the action be taken, then, of course, he/she is free to approach the judge on whatever terms may be deemed appropriate (including, I suppose, ultimately a writ of mandamus). But, in my opinion neither the CSCD nor the prosecutor's office has any duty until the court acts.
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