Hey, all you other appellate types.
How are you handling Alabama v. Shelton appeals.
I have not received a brief yet, but at least one defense attorney is threatening. Bottom line appears to be a challenge to an underlying misdemeanor conviction that was used to enhance an offense to felony level. (The one that appears most imminent is an assault family violence conviction.)
[This message was edited by Gordon LeMaire on 06-27-03 at .]
WAS THERE A WAIVER OF COUNSEL IN THE ENHANCEMENT OFFENSE JUDGMENT? IF SO, IT DOESN'T SEEM THAT SHELTON APPLIES.......ANYWAY, SHELTON DEALT WITH A DIRECT APPEAL, ATTACKING AN OLD JUDGMENT AND SENTENCE USED FOR ENHANCMENT WOULD BE A COLLATERAL APPEAL. I SEEM TO REMEMBER THAT THERE IS CASE LAW LIMITING COLLATERAL ATTACKS......
"A prior conviction alleged for enhancement may be collaterally attacked if it is void (as it would be if it were based on a fundamentally defective indictment) E.g. Ex parte Sanford, 562 S.W.2d 229 (Tex.Crim.App. 1977), or if it is tainted by a constitutional defect (as it would be would be if an indigent defendant had been
denied counsel in a felony trial) E.g., Ex parte Hall, 546 S.W.2d 303(Tex.Crim.App. 1977). Other lesser infirmities in a prior conviction may not be raised by a collateral attack. Galloway v. State, 578 S.W.2d 142, 143(Tex.Crim.App. 1979)."
DOES THAT SOUND RIGHT?
In short, Shelton did not change the holding in Nichols, 511 U.S. 738, nor revive Baldasar, thus Garcia, 909 S.W.2d at 567 remains an obstacle for the claim you suggest is coming.
Yeah. I know this won't fly, but that hasn't seemed to slow the defense bar down in this region.
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