I tried a public official a couple of years ago and she received 10 years pro on a 3rd and 2 probated for 5 on a state jail. The appeals are over and I received a mandate a couple of weeks ago. She hasn't been reporting, etc., for the last 2 years during the appellate process. Do the probationary periods begin once the mandates are issued or did she just get a free ride for the first 2 years of the probationary periods? Any insight would be appreciated.
Probationary term starts now. The sentence is not final until the mandate issues. Now that the mandate has issued, the court should order the defendant to report to the probation officer. We sometimes have defendants who complete some of their conditions while on appeal, but I've never seen a situation where they got credit for the term itself. This should not be the case when they haven't reported during the term.
Knighton, No. 09-06-059/60 (Tex.App.- Beaumont 2007) clearly says there is no credit against the term for the time that elapses while the parties wait for the probation order to become "final" (and actually commence to operate).
Related thread: Let the Games Begin
Tell her it's her choice: either the probation started two years ago, and she has been an abconder this whole time in violation of the terms, and so she will be arrested and revoked now. Or, she can agree that the sentence starts now and the last two years it was stayed.
I think the law is in favor of the latter situation, and given the circumstances, I don't know why she would even want to consider the former.
Our policy is to ask the judge to set the case for a hearing, requiring the attendance of the defendant. Judge formally announces that the probation began on date of issuance of mandate. Conditions are modified as needed if circumstances have changed. Everyone is clear about what is going on, including probation department. And, do a nunc pro tunc on the judgment to reflect the start date.
Heck, you could even invite the media.
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