I've been handed an appeal from a sentence coming from a defendant's MTP. The defendant was given deferred. For the deferred, defendant was ordered to pay restitution as a condition of community supervision. At that hearing, the court included the restitution in its oral pronouncement. Fast forward to the defendant's MTP (for new offense and failure to pay restitution), the court does not include restitution in its oral sentence. The court did, however, include restitution in the written judgement. The case law resoundingly agrees that restitution is punishment and must be included in the oral sentence. The case law shows that this appeal is probably an "affirm as modified."
Does anyone know of any ways I could argue around the seemingly inevitable "affirm as modified"?
It would be hard to change the ruling in Taylor, 131 S.W.3d 497. And, I agree the courts have held that an order for restitution must be pronounced as part of the oral sentence. E.g., Alexander, 301 S.W.3d at 364. But, the judgment in your example merely did what art. 42.03, sec. 2(b) required and if the decision to adjudicate was based on the failure to pay, I would say the court made the necessary pronouncement in the presence of the defendant when it found in what respect he or she had failed to comply. There would also seem to be an argument that the case may be remanded for the trial court to make the oral pronouncement, as much of the caselaw is built on the concept of double jeopardy and that a sentence cannot be altered once the defendant begins to serve it. There is no double jeopardy concern with restitution and the defendant has not begun to pay and the requirement that he be given the opportunity to challenge the modification can still be met. Courts have authority to correct void judgments.
Thanks -- I like these arguments. I was sort of thinking that all the talk during the MTP about the restitution would be helpful in some way. You don't happen to have any cites for those points do you? Both the pronouncement during MTP as satisfying the oral pronouncement by judge point and the double jeopardy point?
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