Does a judge have the authority to award credit for the time a defendant spent in county jail as a condition of community supervision? Ex Parte Walker 150 S.W.3d 429 (Tex. Crim. App. 2004) seems to suggest they can.
Under the CCP, article 42.03, sec. 2(a)(1) (for direct sentence) and 42.12, sec. 13(e) (for probation revocation), the Legislature has very clearly stated that time served as a condition of probation is NOT included in the credit for time served against a sentence. See Ex parte Roberts, 987 SW2d 575 (noting that this provision was based on an amendment back in 1993 and applies as of 9/1/93).
First question out of the box, and JLE gets her question answered by the guy who literally wrote the book (The Perfect Plea, for sale at the link provided).
What a deal!
Only the first one is free.
Wait - maybe I don't understand the question (not that smart) - Are you wanting to apply time that was served as a condition against a final sentence (revocation), or are you wanting to burn back time before he goes on probation?
If a defendant has already spent some time in jail awaiting placement on probation, the judge may give the defendant credit for that time against any time ordered to be served as a condition of probation. And, that may be what was meant by the original question.
Interesting, though, that the judge then converts that earlier time served into the sort of time that is not available for credit following a revocation. So, I guess the defendant should think about the likelihood of finishing out the probation before asking for that credit.
What says jle?
I'm answering a time credit writ. Defendant pled guilty to possession of a controlled substance and received 2 years state jail probated for four. As a condition of probation, Defendant served 60 days in the county jail. Defendant violated probation after the 60 days were served and his probation was modified to include 120 days in the county jail as an additional condition of community supervision. After the defendant was released, the motion to revoke probation was dismissed. Defendant again violated probation and this time his probation was revoked and he was sentenced to 17 months. In the revocation order, the judge wrote special instructions that the defendant was granted "credit for all time served." Defendant has now filed a time credit writ stating he's entitled to 180 days credit for the time he served in county jail as a condition of his probation. I read Ex Parte Walker, 150 S.W.3d 429 (Tex. Crim. App. 2004) and Ex Parte Quinby 928 S.W.3d 565 (Tex. Crim. App. 1996), which I read to suggest that the judge can grant credit for this time served. However, I wanted to confirm/deny this reading.
[This message was edited by jle on 04-11-08 at .]
Then JB's answer is the proper one: the 180 days served as a condition of probation is NOT counted as credit toward the final sentence on the later revocation.
KW, get off your floor and just be pretty.
Judge may not grant credit for time served as a condition of probation. As described above, the law is pretty clear on that one. The judge's overbroad statement in the judgment doesn't change the law. The judge does have discretion in deciding whether a state jail felon gets any credit for time served in county jail, but that is talking about time OTHER than time served as a condition of probation.
A good way to avoid the writ is:
1. Include a statement in the plea agreement about what credit, if any, the defendant will be receiving.
2. At the time of sentencing, announce to the judge the amount of credit due the defendant.
3. Object to the award of any credit beyond what the law allows.
4. Make sure the judgment reflects an actual amount of jail time credit (and not just a global statement that he gets credit for all time served). An even more specific order would designate the dates on which such credit accrued.
A good plea form will cover all of this.
Thanks for your help!
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