Assault on family member can get enhanced to felony if there was a prior conviction or deferred adjudication regardless of whether sentence was probated or if def. discharged from community supervision. OK. I'm looking at an order of dismissal and discharge from deferred adjudication probation that states "this case against the Defendant is hereby set aside, the Defendant is hereby permitted to withdraw his/her plea of guilty, said complaint and information are hereby DISMISSED, and the Defendant is DISCHARGED and RELEASED from all penalties and disabilities..."(Caps in judgment) Does that language cause the prior probation to be unusable relative to the new assault or does PC 22.01(f) make it available?
Section 22.01(f) says you can use the prior if the person entered a plea of guilty or no contest in return for a grant of deferred adjudication. If the defendant entered a plea on the prior offense, you can use it, even if he successfully completed the deferred.
I'd run with it as a prior. Let the appellate court tell you that you are wrong. The clear meaning of the statute is to eliminate any opportunity to sidestep enhancement by adjusting the plea or the results of the probation.
Sort of reads to me like the def. was allowed to w/draw his plea and the case was dismissed. If that is the case, I don't see how it could be used to enhance if it is no longer a conviction.
Of course, I could just be reading it wrong.
just read it again and I think I did read it wrong. Sorry.
Can an AFV (22.01) be enhanced to a felony using an out of state conviction?
The answer is NO ... but it will soon be YES. Assuming it becomes law, SB 91 expands the type of prior convictions that can be used to enhance a FV assault, and it will apply to enhanceable FV assaults committed on or after 9-1-05.
See here for the details:
SB 91 text (as finally passed)
The order does state that the def. withdraws his plea and that the complaint and information are dismissed. It does purport to dismiss the case but I think I'll give it a go anyway since it tries to sidestep the intent of the statute.
CCP sec. 5(c)(1) says the previous deferred is admissible to be considered on the issue of penalty. Any problems with the idea that, despite the dismissal of complaint and information, use of the prior for enhancement is consideration on the issue of penalty?
That's exactly what that means.
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