Everybody knows of the complicated enhancement provisions. State jail convictions count sometimes and sometimes they don't. Same for the other more serious felony convictions in a State Jail prosecution.
So here is the question for all of you indictment scholars: Do you see anything improper about stating the type of felony conviction an enhancement allegations is? For instance, .."the defendant was previously convicted of ...., a Third Degree Felony, ..." OR "the defendant was previously convicted of ..., a State Jail Felony."
It seems to me that such an additional allegation would be valuable in giving notice to the defense attorney and judge of what the range of punishment is. Whatdaya think?
I agree that it may be helpful. However, putting the degree of felony within the enhancement allegation itself would seem to add an additional element of proof to proving up the enhancement. Many of the judgments that I have seen in pen packets, especially the older ones, don't have the degree of the offense. That would leave us having to put on evidence to show what level offense is shown in the judgment in order to fulfill our burden of proof. It would also lend itself to additional errors by the staff people that type up the indictments. If these slipped past the grand jury prosecutor or trial prosecutor, the error could delay the trial or result in a not true finding that would not otherwise occur. My feeling is that, while useful to the judge and defense attorney, its not a worthwhile idea. I would suggest if either has a question about the enhancements, they could just ask the prosecutor handling the case.
We put the offense level in the "caption" of the indictment above the actual charging language, IE:
Delivery of Cocaine 1-4 Grams - Habitual (5-99)
Delivery of Cocaine <1 Gram - Habitual [2nd deg)
That alerts the court/coordinators/clerks or who ever of the offense level yet if we screw up and put th wrong caption - no problem with proof(except looking a little foolish.....which I'm accustomed to)
If the State were relying on sec. 12.42(a)(1) to enhance, I would see no problem with including the allegation that the prior felonies were state jail felonies, but still hardly seems necessary. If the State is relying on the wrong type of felony for a particular enhancement, that will become apparent sooner or later, whether so identified in the indictment or not. Besides, if this approach were adopted you would have to determine whether to allege "state-jail felony punished under sec. 12.35(c)" or "third-degree felony". Furthermore, as shown in another thread, some judge would still think a third-degree felony is really a state-jail felony and it would take more than the description in the indictment to change his mind. We also try to put the correct grade of the offense on the indictment (as in Grimes County).
Judge, I don't see a problem with it. The variance case law on habitual allegations is much more lenient than the now severely limited variance case law for allegations of a primary offense. Our enhancement paragraphs have always alleged far more than required (although they don't include the useful information you've suggested), and we've always survived variance challenges.
On a lighter note, I'd challenge even a master like Martin to come up with a wordier enhancement paragraph than our standard.
I sincerely thank each of you for your great suggestions and comments.
Maybe my problem is local. Unless we are going to have a trial, our prosecutors usually don't have any information in their files regarding prior convictions other than what is shown in the indictment.
And since most defendants plead guilty, it is always a mess since nobody seems to know what level of offense the case is because nobody knows the punishment level of the prior offenses.
Our Grand Jury section puts every prior conviction in the indictment whether or not it affects the punishment level.
You all have given me some sound advice and great suggestions. Our system will get better because of your help. Thanks a million.
My habit is to allege everything I can, even if it does not affect the punishment range. Ata bare minimum, it puts the defendant on notice of priors which may come into play at the punishment stage.
When I get a handful of prior felony thefts and I'm fixing to file a new theft on somebody and I only need 2 of the priors to make it a SJF theft w/ 2 priors, I select the priors I wish to use to enhance the misdemeanor theft to theft w/ 2 priors and I label them "Count I, Paragraph 2 & Count I, Paragraph 3" to make it obvious that I'm pleading these for jurisdictional purposes. I then label all the rest of my felonies simply as "Enhancement Paragraphs".
I have also alleged that a prior was a "state jail felony", when I'm seeking to enhance a SJF up to third degree punishment range - just to make it obvious to everybody in the trial division, court & defense.
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