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Paperwork error here resulted in defendant being indicted for offense after he had entered a guilty plea to the information. He was reset for sentencing and our office suggested that the judge just have him plead to the new indictment and sentence on the same day. Judge is balking. Is the information still valid after the indictment? I can't find any cases on this, or anything specific in the code.
 
Posts: 3 | Location: Travis County | Registered: July 20, 2016Reply With QuoteReport This Post
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Since defendant already entered a plea on the information (and presumably waived indictment), just sentence on the cause number the information is filed in. Sounds like prosecution in the cause number that is indicted would be barred by jeopardy. Wait until sentencing in the information case and then dismiss the indictment - seems "cleaner" that way.
 
Posts: 325 | Location: Texas, USA | Registered: November 16, 2004Reply With QuoteReport This Post
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Except they are both under the same cause number Frown
 
Posts: 3 | Location: Travis County | Registered: July 20, 2016Reply With QuoteReport This Post
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From the John Wesley Hardin appeal: "the mere pendency of one indictment is no bar to another, even for the same offense; the accused cannot be tried on both, but the [State] may elect on which it will proceed." Hardin v. State, 4 Tex.App. 355 (1878). Furthermore: "It seems to be well settled in this state that the pendency of one indictment does not prevent the grand jury from returning subsequent indictments charging the same offense." Stovall v. State, 97 Tex.Crim. 71, 260 S.W. 177 (1924).

But, because jeopardy has already attached as to the information in your case, I think you would want to ignore the indictment (assuming both pleadings sufficiently allege the same offense) and move to dismiss it (again assuming there is no defect in the information) once sentencing on the plea is completed. There may be an argument, however, that the defendant can waive any double jeopardy claim by pleading guilty to the indictment. Ex parte Birdwell, 7 S.W.3d at 164.

I will note that it appears questionable to me whether the indictment should have been given the same cause number as the information. You state that it was not intended as a substitute or amendment for the information.
 
Posts: 2386 | Registered: February 07, 2001Reply With QuoteReport This Post
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