I have a kid who has previously been adjudicated for Agg. Assault and UUMV. He has now picked up a Burglary of a Habitation and a UUMV. Question: Does it matter that one of his previous adjudications was for a state jail felony? Dawson is clear that the third offense cannot be a state jail felony, but he is vague as to what level of offenses the previous adjudications must be. I know the newest UUMV would not make him eligible as a habitual felon, but the burglary would.
I see no reason why your state jail felony couldn't count as one of the underlaying felonies. 51.031(1) just says "penal law of the grade of felony". But thats just my humble opinion, I couldn't find any case law to back that up. Legislative commentary says this section was patterned after CCP 12.42.
i certainly think you are right and i agree. i just wanted to hear it from someone else! thank you.
I don't think you can do it. See Fortier v. State; 105 S.W.3rd 697(Ct. App. Amarillo, 4-16-2003). They said that the wording in Penal Code 12.42(f) allowing a juvenile adjudication of delinquency for a felony resulting in TYC commitment to be a "final felony conviction" for enhancement purposes had to be considered in conjunction with the requirements of 12.42(a)through (c) and (e) which prohibit the use of a state jail felony for purposes of an enhancement( at p. 701). Read the case and the sections of the statute and see what you think.
12.42 has the specific provision detailing how state jails can be used in an adult enhancement.
There is no similar provision in the family code, so I would agree that the juvi state jail could not be used to enhance an adult to habitual status (as in Fortier) but I see nothing that would preclude its use to "enhance" the juvenile range punishment.
Stacey, I see your point and if it were just in a juvenile court situation - bearing in mind that disposition is ALWAYS to the judge - I could even argue that the Family Code Provisions where the graduated Sanction Levels provide that each offense the juvenile picks up puts him into a higher sanction level serve as "enhancements". You don't have to plead and prove them the same way as you would adult enhancements. The juvenile court judge is always going to know about the prior offenses because they are admissable in the disposition report. When people start talking about "enhancements", I envision the kind you have to plead up and prove, as in adult court. For the juvenile court "Habitual Felony Conduct" provision in 51.031, the first sentence specifically excludes state jail felonies, so it's not even a question there. I can't think of anywhere else in the juvenile court where "enhancement"-type pleadings would be required.
I agree that 51.031 does exclude state jail felonies as the offense to be "enhanced" but I don't read it to exclude using state jails to enhance a non state jail felony.
51.031(1) says "penal law of the grade of felony" and does not exclude state jails from that section, only the section before speaking to the felony to be "enhanced".
Just to be clear, I don't think you can make a burg of a building a habitual felony even if the two priors are Agg. Robbery and Agg. Sexual Assault, but I do think that you could make a Burg Hab a habitual felony with two prior burg. building adjudications (in juvenile cases).
I agree with you and would make the same argument that you are making.
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