In a discussion earlier in the year, someone mentioned that you can still enhance the punishment range of a case by giving notice of the prior convictions even if you failed to put those enhancements on the indictment as long as jurisdiction is established on the indictment.
We've got a hero who's charged with possession c/s 1->4 grams. Turns out he's got 15 prior convictions (some of them sequential) for felony charges.
I'd like to hit him up with 25 to life.
Would one of you who've done this sort of thing before send me a suggested 'notice of prior convictions' for this purpose?
OR: someone post here telling me that I'm an idiot and that I can't do that.
You can do it. Although the preferred vehicle is in the indictment, it's not required. Either go with a motion to amend or a letter to the defendant with a copy filed with the clerk. I don't have a form but start out looking at Brooks v. State, 957 sw2d 30; Riney v. State, 60 sw3d 386; williams v. State, 33 sw3d 67. I'd recommend that you word the letter as a formal notice of intent to enhance the punishment to habitual criminal status with alll of the info that would be in enhancement/habitual paragraphs.
While the Brooks case doesn't specify any particular form for such notice, I would recommend you do it by amending the indictment to add the enhancement paragraphs. File a motion to amend, attach a copy of an amended indictment that adds the enhancements, serve copy on defense, have judge actually adopt the amendment as the new original indictment or formally write the notice on the face of the old indictment.
You don't have to go back to a grand jury because you aren't changing the underlying offense you are prosecuting. You are just adding notice, which doesn't have to be approved by a grand jury.
I've done this a couple of times. It has been upheld on appeal. The only caveat is that whatever vehicle you decide to use MUST be filed in the court's file. I agree with Mike that the best way to do it (other than amendment) is to file a notice in the court's file entitled "Notice of Intent to Introduce Prior Convictions to Enhance Punishment Range", and send that notice by certified mail to the defense, or hand it to them in person. This is purely a matter of notice so the form is not really that important BUT the original case which said that it did not have to be in the indictment also set out a bright line rule that it must be in a pleading on file in the case. Amending the indictment is probably the best way if you have time.
You can do it by either filing a motion for leave to amend or by a formal notice filed just like you would another motion. I have done both. I would not use a letter, even if it's filed with the clerk's office. There is a case from the 2nd Court of Appeals that says a letter is not sufficient. A subsequent unpublished opinion says that the formal notice sent to the defense and filed with the clerk is sufficient, even short of amending. Of course, while it is somewhat of a hassle, there is no question that actually amending the indictment will always work. I'll be happy to send you copies of both.
That 2nd Court of Appeals case that got reversed for just sending a letter was me. I tried it that way first and found out it has to be filed.
Thanks. Very appreciated.
Yes, we've got time to amend the indictment. Pretrial hearings are next month.
Cheers to Brazoria County's e-mailed draft of an example notice.
Tim, for what it is worth, I thought the court of appeals was wrong to say a letter was insufficient. There is nothing at all in Brooks to suggest any more formal notice is required. And, given the lack of surprise by the defense, it would seem difficult to show prejudice.
That was my argument but they didn't buy it.
We do it fairly routinely with a formal Notice of Enhancement that is filed with the court's file and copy to defendant. I'f you'll give me a fax number I'll send you a sample.
Yes please: (940) 668-5499
I have about 4 examples via email now. Thank you very much for your responses. Y'all are the reasons small counties get along. Thanks.
I am looking to enhance a regular robbery with the defendant's priors, making him habitual. I have filed a Brooks Notice with the clerk, but the form I had included an order for the judge to sign. Now, I just flipped over from civil practice so no doubt I'm confusing myself, but does a notice require an order to be signed? I thought that would just be a judgment.
We go to trial next week so i thought I'd check and see if you all thought I should go ahead and get the judge to sign it (if he will) during pre-trial motions.
Thanks for any and all input!
There is an exception to the Brooks rule, thought it is not officially considered an exception. Guess it is more of a way around.
I came across a case when a defense attorney attempted to force me to redact some pen packets because they listed other crimes taken into consideration. Case laws says no redact necessary in some cases. The case is Woodard v, State, 931 S.W.2d 747.
The main thrust of the defense's argument in Woodard was that they did not get the proper notice of intent to use those "other bad acts". The Woodard court basically said that giving the rap sheet to the defendant and telling him "we are going to use everything in here" constituted proper notice. It worked for me because the standard practice since long before I came here has been to file a business records notice with the pen packets attached.
I assume that filing a business record notice would count the same as the "Notice of Intent to Introduce ...." that I also file.
The Brooks case hold that notice of an enhanced punishment (based on prior criminal history) does not have to come exclusively through a penalty paragraph in an indictment. Such notice may be delivered to the defendant through other, less formal, documents, such as a letter to the defendant.
The notice should be filed in the clerk's file. There is no requirement that a judge sign the notice. However, judicial recognition that the notice was provided in a timely manner would sure help respond to any future claims of ignorance.
It is a simply way to supplement notice that didn't get in the indictment without having to re-indict a case.
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