TDCAA Community
Can judge grant probation when jury denies it?

This topic can be found at:

February 05, 2008, 09:30
Can judge grant probation when jury denies it?
See the article in "Issues in Prosecution."

I am convinced that the Dallas DA is correct, and this was illegal on the part of the judge who granted shock probation to a defendant sentenced to 10 years in prison by a jury (according to the article).
July 03, 2008, 11:15
The CCA on Wednesday granted PDR on Ivey (the case out of Austin in which the judge, over the decision of the jury, granted probation). Looks like we will get an answer. This is one time when I am rooting for the defendant.

[This message was edited by JB on 07-03-08 at .]
July 04, 2008, 20:46
By the way, it appears that the lawyer in Ivey was Adam Reposa. So, on the same day that the CCA granted a PDR by Reposa, they also ordered his writ, seeking relief from the contempt order (for simulated masturbation in court), filed and set for briefing. An interesting juxtaposition, eh?
February 11, 2009, 11:08
The CCA says a judge can grant probation even if the defendant elected jury punishment. They toss away any meaning from the 1993 deletion of express authority for that action. Presiding Judge Keller's dissent says it best: the defendant has the right to elect punishment from judge or jury. Oh well. Frankly, the State is going to regret arguing for affirmance of this case. Because in most cases, the defendant is the one that is going to benefit from now having two chances to get probation, particularly in those courts in which the judge is weak on punishment or chooses to differ with the jury's decision.

Majority opinion.

[This message was edited by JB on 02-23-09 at .]
February 11, 2009, 16:05
Cory Crenshaw
Let the trifurcated trials begin ...
February 11, 2009, 16:17
Andrea W
Would it be proper to tell the jury that if they want to be really, really SURE the defendant doesn't get probation, they have to give him a sentence longer than 10 years or the judge could do it anyway?
February 11, 2009, 17:08
David Newell
February 11, 2009, 17:24
If the defendant is unwilling to even ask for probation, why should he be forced to accept it? What incentive does this defendant have to comply with probation conditions? He *wants* to serve his time. His only question now is, how do I avoid serving more time than the jury thought my case was worth?

The CCA argues that the old language that noted the Court *did* have the authority to grant probation when a jury did not recommend it didn't mean anything in the first place, but just reiterated something that was already in the statute for practitioners who might not have noticed the change otherwise. Therefore, when this "vestigial" language was deleted, that, too was a meaningless bit of legislation.

Can anyone recall another example of a statute that contained language that was intended to have no effect, and that was later deleted with the intention that the deletion have no effect? If the provison was previously enacted solely to clarify the meaning of the statute, then was the deletion intended solely to make it more confusing?
February 11, 2009, 17:25
Originally posted by David Newell:

My sentiments exactly. If only I could be so succinct...
February 11, 2009, 17:35
So the jury thinks they have given a sentence of a certain length of time and that he will serve it. When he violates his probation (and he will - why wouldn't he?) his attorney is going to be able to negotiate a better sentence for him. They nearly always do. The jury should be offended because certainly that wasn't their intent. I am still struggling to see why this outcome was a good thing for the State to argue. Where did the State win on this one?
February 11, 2009, 21:00
So which lawmaker is going to carry the banner to fix this dirty diaper of a ruling? I hope someone steps up to the plate to clarify that a judge cannot grant probation where a jury doesn't recommend it.
February 12, 2009, 10:01
Quiet Man
Trifurcated trial. I like that. This will shut down what I thought was an unethical defense practice in misdemeanor DWI cases.
February 12, 2009, 11:30
One of the many things that bug me about the case is the ex parte "visit" with the jury (Holcomb dissent). Isn't this just sort of J.N.O.V. as to punishment?
February 12, 2009, 13:45
I thought that visit was extraordinarily unethical. The judge received information apart from the parties. The judge received information without giving the defendant the benefit of counsel or cross-examination. The judge disrespected the defendant's election on punishment. The judge disrespected the jury verdict. And, the judge did a pointless act: putting the defendant on a probation that the defendant had no intention of completing.
February 23, 2009, 16:51
G Dudley
This brand new case seems to say that the judge can probate the sentence, even over the defendant's objection, as long as it is not 3g and the jury's sentence does not exceed 10 years..... Ivey v. State --- S.W.3d ----, 2009 WL 322340 (Tex.Crim.App.)
February 23, 2009, 19:23
That case is mentioned and linked above.
March 25, 2009, 04:52
A bill to reverse Ivey has been filed and heard in the Senate Criminal Justice Committee.
April 14, 2009, 16:48
Fred Edwards
Maybe a dumb question...after a finding of guilty by the jury...can the judge turn around and give the defendant deferred...non 3G...the statute suggests that it can not be done...but we have a judge that who is moving in that direction...any ideas
April 14, 2009, 20:46
Following conviction by the jury, the judge could not give deferred. Deferred requires plea of guilty to judge. That is not possible after a jury verdict arrives. Of course, if a judge tried to do it, you would have to stand ready to seek a writ of prohibition.
April 15, 2009, 08:55
Judge cannot give deferred after a defendant is found guilty by a jury. E.g., Rodriguez v. State,
939 S.W.2d 211 (Tex. App.--Austin 1997, no pet.).