Scenario:

Defendant as part of plea bargain is convicted of State Jail Felony and is sentenced to 2 years probated 5.

Defendant screws up and is later revoked. Can judge now punish defendant under 12.44(a)?, or is he or she required to punish as State Jail?

Art. 42.12, sec. 23, CCP, says a judge, following revocation, can sentence a defendant to "a shorter term of confinement" by reducing the sentence to "any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted."

So, the question is whether a sentence under sec. 12.44(a), PC, meets that language. Note that last session the Leg amended sec. 12.44(b) to add a requirement of prosecutor consent. No such requirement for 12.44(a).

I was thinking the same thing.

CCP says judge may sentence to ..."any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted".

Lets say the prosecutor agrees, even though he does not have to agree under 12.44(a) Since the defendant was "convicted" of a State Jail, my thought would be that the judge can "punish" as Class A even on a revocation where the defendant was sentenced to 2 years probated 5.

That seems to be a reasonable reading of that provision. One could argue that the punishment range is limited to the sentence already imposed: state jail time. Just depends on how much you care.

I would argue that since confinement in state jail was specified in the original judgment, only a reduced term in state jail can now be imposed. Sec. 12.44(a) applies at the time of trial, not at a later sentencing proceeding. Only art. 42.12 sec. 23(a) applies in your situation (via (f)(1) of sec. 15).

I think I agree with Martin, particularly if a prosecutor originally agreed to the state jail sentence as part of a plea agreement.

Would the result be the same for a deferred, since there is no finding of guilt?

More significantly, there is no decision on a sentence, so the judge's options are left open.