Need answer ASAP

Def was placed on 10 years probation on a State Jail Felony last year. She has a new case and an MTR on the probated case. Does the trial court have a way of setting aside the invalid judgement or must this be done, if at all, at the appelllate level? Is it an invalid judgement?

Thanks

A void sentence can be challenged at any time. If a judge, for example, sentences a defendant to 50 years in prison for a misdemeanor, then it is void and can be challenged by direct appeal or writ of habeas corpus, regardless whether anyone objected at any time.

Probation is not even a sentence, much less a void sentence. The Court of Criminal Appeals has held that a defendant waives any defect by failing to object at the time the allegedly defective probation is ordered.

I take it from your example that the mistake from the state jail felony probation is the length of the probation (10 years, when the initial maximum length is 5 years). However, in the absence of an objection and appeal from the original sentencing event, there is no basis for the defendant to complain.

As a practical matter, you can ask the judge to shorten the term of probation to 5 years, but it still could be extended later to 10 years.

As for your motion to revoke, it sounds like you should just proceed to prosecute it.

John,

My judge seems to think that he doesn't have the authority to simply shorten the period of probation and is contemplating granting a writ of habeas and setting the whole thing aside

Have the court read Nix, 65 S.W.3d at 667-8 and Williams, 65 S.W.3d 656. Habeas corpus is available only where the restraint is illegal, i.e., the judgment is void. art. 11.23 CCP. While the voidness of the community supervision order might be a defense to revocation/adjudication, the fact that too long of a term of supervision was ordered is not anything from which the defendant could benefit (during the first five years).

I agree with Martin's choices of cites for your judge to read. I also would add Speth v. State, 6 sw3d 530,and Ex parte Williams, 65 sw3d 656, which stand for the principle that probation is not a sentence and any problem with a probation is waived by a failure to object at the time of sentencing.

In Williams, for example, the entire probation was illegal because the defendant was not eligible for it. But he still couldn't complain about being sent to prison because he got the benefit of a probation he didn't deserve.

Just for my own peace of mind and to clarify the discussion - was it a 10 year deferred adjudication; or, a term in the State Jail probated for 10 years?

It was a straight probation not deferred