I need some sage advice from some top prosecutors.

Deferred probation is revoked and the defendant appeals. During the pending appeal, the probation term expires. The revocation is reversed and a new punishment hearing is ordered. This is an old state jail case where upon revocation, suspended sentence probation must be ordered. Since the suprevision term has expired, is there anyting that can really be done???

Thanks for any help you'all can give me.

Judge, does whoever dares to answer have to claim to be a top prosecutor capable of giving sage advice? I do not know whether I will qualify under those terms or not, but I will try to help. You seem to be describing Leonard David May's case to a T. If so, then in my opinion there is yet another problem-- the court of appeals failed to apply the applicable law, namely the last sentence of art. 42.12, sec. 5 (b) (amended effective January 1, 1996, I believe by Acts 1995, ch. 595). But, the State failed to challenge that ruling and I guess you will be following the "law" of that case, though you might just try imposing a proper punishment once again.

Whether we are talking about Mays or some similar case, even though the specified term of the supervision expired as a result the foiled initial attempt of the court to hear and determine the State's motion, I see no basis for the defendant to argue the court has lost jurisdiction to grant relief to the State. Certainly sec. 5 (c) does not apply to require dismissal and discharge merely because the original supervision period expired. Prior, 795 S.W.2d at 184. Rather, "all proceedings" should now "continue as if the adjudication of guilt had not been deferred". The appeal may effectively have postponed the point in time when those proceedings can take place, but I do not see how it deprived the court of authority to act. Sec. 5 (b) specifies no timetable for the events it details.

Furthermore, since the defendant could not appeal the court's determination to adjudicate guilt, that decision stands. Surely, the court is still entitled to take action based on that decision. In my opinion that decision terminated the original term of supervision (i.e., it never "expired"). The court has proceeded to adjudication of guilt within the original period. That is all that is important. If the defendant must be placed on a new term of community supervision so be it, but that is the action that seems indicated to me.

Martin, you are certainly capable of giving sage advice and I sure do appreciate it.

My case involved revocation of a deferred state jail probation. I sentenced the guy to 2 years and he appealed. This was an "old" state jail case and the appeallate court said I was required to give him probation of the sentence. So they remanded the case for a new punishment hearing.

The problem is this. During the pendency of the appeal, the defendant remained on supervision, reported etc. Then the supervisory term expired. Then the sentence was reversed.

I agree with you in all of your thoughts, but I am still concerned I can place him on "real" probation since he completed his "deferred" probation prior to the appellate mandate.

Do you think I can now place him on probation for 5 more years???? I suspect you will think that is proper, and I am inclined to agree but your additional thoughts or those of any other prosecutor would be welcomed. Thanks so much.

Judge, technically any judgment placing the defendant on probation is stayed by the filing of the notice of appeal. Tex. R. App. P. 25.2(e). Thus, our position has been that a trial judge cannot make a defendant report, etc. via a judgment of probation while the defendant is appealing, nor does the defendant get credit on his probation term during the pendency of the appeal. Many of our judges do require defendants in this position to post an appeal bond, and require periodic reports (and other acts) as conditions of the bond. I am unsure whether defendant's get "credit" if the conditions they meet under the bond also satisfy conditions of their probation. (At least one of our defense lawyers really tries to play this quirky area). In our view, the defendant does not start probation until the appeal is over, and we cannot revoke the defendant's probation for acts committed during the pendency of the appeal. The term has not expired because it did not start until you received the appellate court mandate.

In short, if an appellate court reversed your judgment and ordered a new punishment hearing, I think you can give him up to 5 years probation, regardless of the passage of time during the pendency of the appeal.

I don't claim to be sage or a top prosecutor, and would love to hear what others think.

I think Rolater's answer is right on. I only pause to note that one court of appeals recently raised the concern that Judge Gist mentions: the continuation of the probation during pendency of an appeal. See Maldonado v. State, __ S.W.3d __ (No. 13-02-00120-CR, Tex. App. Corpus Christi 2003).

Having told you about that case, I also hope that someone seeks PDR and straightens out this mess. It makes no sense for a probation to continue while a defendant is appealing a revocation. (In the Maldonado case, the judge revoked the probation a second time while the case was on appeal, and they were arguing which revocation counted.)


Stop the madness. I think the defendant is eligible for the full 5 years of regular probation supervision.

My deep thanks to John & John.

I'm going to give my guy 5 years probation. I expect the defendant will appeal claiming that jurisdiction to do so has been lost.

Our Court of Appeals will wax eloquent and if they think I'm wrong, I hope our DA will seek PDR.

This is getting to be a serious problem in the complicated area of punishment. We definitely need some direction from the real judges!!!!

I really do thank everyone for discussing this. You are all tops in my book and I am very grateful you each took your time to help me.

"Madness" might well describe how the courts have treated 25.2. Though an entirely logical argument, to my knowledge subsection (e) has never been given the interpretation John R. suggests by a real judge. At least with respect to regular probation, I have interpreted the appeal as suspending the revocation order. Thus, instead of being required to commence service of a sentence of imprisonment, the probationer must continue to perform under the original order (as the court has just found he was unable to do). Margiotta, 10 S.W.3d 416, 418. I believe my opinion is shared by Professors Dix and Dawson, see 43A Texas Practice, Criminal Practice and Procedure, sec. 40.126 fn. 4. However, they do state that if the date specified in the order for termination arrives during the pendency of the appeal, the requirement of compliance with the conditions in the original order then ends. But, the jurisdiction of the court under sec. 5 to conduct further proceedings does not expire just because the original order does and the court can upon remand re-assess the punishment, etc. (though perhaps subject to former sec. 15(a) as worded prior to the 1997 amendment). Since the necessity for those further proceedings is not known until the mandate of the appellate court is received, it would be preposterous to say the mere passage of time constitutes or creates a bar to doing what the statute (and the order of the court of appeals) says should be done.

Of course, (setting aside the problem of having to grant a probation after adjudication), there is a very easy solution for district judges to this problem. Adjudicate or Revoke, sentence to prison, and deny an appeal bond (on the ground that the defendant is likely to commit another offense if released). The defendant then is not out "on probation" tweaking his nose at the court. Why judges grant appeal bonds to revoked felons is beyond me.

JB, they do it in order to have some control over the defendant's prosecution of the appeal. We had a problem where people would file an appeal from their probation sentence and never be heard from again . . . . Other methods are available, of course, but this one gives the trial judge a role.

Perhaps fixing this gap could be a project in the next Regular session (only a few months away, right?).