Back in 2005, I drafted a possible amendment to sec. 12.42 of the Penal Code that would treat probated sentences just like sentences that were not suspended. HB 3018 (79th Leg.). This language would have been added to the statute: "For the purposes of this section, except as provided by
Subsection (c) and regardless of whether the imposition of sentence for the prior offense was suspended, until the judgment is set aside
by a court as provided by law or on a pardon in accordance with Section 11, Article IV, Texas Constitution, a person is considered to be convicted of an offense if the offense was committed before the commission of the offense for which the defendant is on trial and a written judgment adjudicating the defendant's guilt is signed on or before the date the defendant is sentenced for the offense on trial. A judgment of conviction is not considered to be set aside
by an order granting community supervision or an order entered under Section 20(a), Article 42.12, Code of Criminal Procedure, or
another similar statute."
In his motion for hearing (attached), Sammy McCrary made a very well-researched and strong argument about this topic (although, predictably, the CCA left things as they have been). I mention it here for the benefit of anyone who might like to further pursue the matter at some point.
Pue_Brief.pdf (228 Kb, 9 downloads) Pue
Until the CCA ruled otherwise recently, you could use a federal or out of state felony probation to enhance a conviction if you could show that the other jurisdiction treated probations like "final convictions" for enhancement purposes. I have used other state's felony probations to enhance on many cases. I only found 2 states--Washington and Maryland--who do not enhance unless the def. went to the pen in the prior conviction.
However, the trend in the legislature is to make prosecution more difficult, and to figure out ways to discourage sending crooks to the Big House, so I doubt if your proposed statute would go anywhere.
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