TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Court Grants Shock Probation
Go
New
Find
Notify
Tools
Reply
  
Court Grants Shock Probation Login/Join 
Member
posted
On December 30, 2004, defendant was senteced to four stacked state jail terms for cattle theft. Sixteen other charges were dismissed as a result of the plea. Defendant was sent to state jail but later moved to a medical unit in the institutional division because of his diabetes.

Defendant is a year into his second sentence. He filed for shock probation and after a hearing, the judge granted shock probation, stating that defendant's confinement in the institutional division was illegal. Rather than undo the plea, the court has released him on five years community supervision.

I understand that the judge can grant shock probation on a state jail sentence after 75 days of the sentence have been served under 42.12 Section 15(f)(2) for any reason. I am, however, planning to appeal her modification of the defendant's sentence. He has two sentences that have yet to commence and my position is that the judge has no authority to shock the defendant on those cases until he has been in state jail for 75 days.

Has anyone ever run across a situation like this before? Does anyone have an example of a state's appeal for a court modifying a judgment? I am in a solo shop and would appreciate any help/advice. You can email me at sheatly@co.wilbarger.tx.us.
 
Posts: 146 | Location: Vernon, Texas | Registered: February 02, 2007Reply With QuoteReport This Post
Member
posted Hide Post
Did the judge do the original sentencing (not the jury)? If not, then you also could argue that he illegally altered a jury punishment.

As for the shock probation, you are quite correct that he can't change the stacking order. And that would prevent him from probating a sentence that hasn't yet begun.

There is also a separate law that says you can't follow up a probation with confinement. This judge has made quite a mess of his sentences.

Perhaps a writ of mandamus would work if direct appeal is not possible.

[This message was edited by JB on 10-15-07 at .]
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
Member
posted Hide Post
Thanks for the response JB. The sentences were the result of a plea taken by a visiting judge. The DA at that time is now the judge so another visiting judge heard the application for shock and granted it.
 
Posts: 146 | Location: Vernon, Texas | Registered: February 02, 2007Reply With QuoteReport This Post
Member
posted Hide Post
Wow, talk about no accountability. You can't even complain to the voters.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
Member
posted Hide Post
Wait! Did I understand you correctly--the judge thinks its an illegal sentence if TDCJ transfers a sick inmate from State Jail to a medical unit in the I.D.? In other words, if you commit a state jail crime, and you are too sick to keep in the S.J., then you can't be incarcerated? Which means that being "on probation" in such a case, is really a misnoumer, since you can not be revoked.

Did I get that right?

Because if I did, you have much bigger problems with that judge than this single case. You see, JSH, what you have is a judge who is traveling in a different dimension in time and space. You have a judge who is in--The Twightlight Zone. Eek

Good luck.
 
Posts: 686 | Location: Beeville, Texas, U.S.A. | Registered: March 22, 2001Reply With QuoteReport This Post
Member
posted Hide Post
What's the twig light zone, TB? Does it involve Twiggy?
 
Posts: 2578 | Location: The Great State of Texas | Registered: December 26, 2001Reply With QuoteReport This Post
Member
posted Hide Post
Greg,

I wasn't a spelling major in college. Did I mispell Twightlight?
 
Posts: 686 | Location: Beeville, Texas, U.S.A. | Registered: March 22, 2001Reply With QuoteReport This Post
Member
posted Hide Post
I son;t speil too good ether somethimes.
 
Posts: 2578 | Location: The Great State of Texas | Registered: December 26, 2001Reply With QuoteReport This Post
  Powered by Social Strata  
 

TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Court Grants Shock Probation

© TDCAA, 2001. All Rights Reserved.