Have defendant with out of state felony conviction but sentence states that defendant can live anywhere but the state of conviction. Is that conviction void for constitutional error and subject to be quashed? Just started researching but have not found anything exactly on point yet.

Just which state is it exactly that is pawning its felons off on the other 49?

It was Alabama. Alabama has a split-sentencing act where defendant serves time in jail or prison then is released on a probation term. So far I have found nothing that allows a probationer to be banished from an entire State. There is case law that says with logically related reasons a person may be banished from certain counties of a State, but cases forbid banishement from an entire State. Since it appears to be unconstitutional is the prior conviction void and therefore unusable for enhancement since it is a collateral attack.

[This message was edited by pkdyer on 03-13-07 at .]

Just curious PK but, in your research, did you determine just how alabama would enforce a violation of that condition/mandate?

Doesn't Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) say that illegal conditions of (or the illegal granting of) probation will not make the conviction void:

An award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial court and the defendant. Therefore, conditions not objected to are affirmatively accepted as terms of the contract. Thus, by entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable.FN9 A trial objection allows the trial court the opportunity to either risk abusing his discretion by imposing the condition over objection FN10 or *535 reconsider the desirability of the contract without the objectionable condition.

Appellant did not object at trial to the imposition of the conditions. See fn.13, supra. The Court of Appeals erred in holding appellant could complain about the community supervision conditions for the first time on appeal.

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Alabama seems to say that a plea bargain that includes banishment is void. Warren v. State, 706 So.2d 1316, 1318 (Ala.Crim.App. 1997) (�the plea agreement entered into between the appellant and the state was invalid because it was conditioned, in part, on the appellant's permanent banishment from the state following his release from prison-a violation of Art. I, � 30, Alabama Constitution of 1901. It makes no difference that the appellant agreed to this condition as a term of his negotiated plea agreement-a defendant cannot consent to a sentence that is beyond the authority of the court.�)

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BTW, are you using a non-final conviction under TPC 12.42(g) or 49.09(d)?

Thanks - I did not find that case in Alabama - found Beavers, 666 So. 868 which says trial court may not banish from State, but Board of PP might be able to. I will check into finality, it is under 12.42(d). The problem I see with Speth is the Alabama split sentence act. It does not seem to be truly a grant of probation as in Speth. The grant of probation is only after the defendant serves a set time in prison or jail-type institution. The execution of the remainder of the sentence is suspended and the defendant is placed on probation under terms the court deems best. Does this meet the same qualifications as Speth? What about the full faith and credit doctrine - can a Texas judge declare a sentence void under Alabama law? I think since AL split sentence law is discretionary and "it suspends the imposition of the sentence" Speth is a good case for me.


[This message was edited by pkdyer on 03-13-07 at .]

[This message was edited by pkdyer on 03-13-07 at .]

[This message was edited by pkdyer on 03-13-07 at .]

If the conviction has not been challenged in Alabama then it is entitled to every presumption in favor of validity. Obviously the defendant was not banished during the time he was serving his sentence. I would certainly argue any improper condition concerning his release on parole does not render the conviction (prior finding of guilt) void.

Have a long list of folks I would love to be able to add as a condition of probation, "Get the Hell out of here. Go on - Git!"
As they used to yell at us as the Jolly Fox was closing up, "Unless you're sleeping with someone that works here, or you plan on doing so, you gotta go. You don't have to go home, but you just have to go.