trial court jurisdiction after early termination
The trial court early terminates the probation of the defendant on motion of the defendant(without hearing or notice to the prosecution). The defendant is a 3g, sex offender, so he absolutely cannot be early terminated.
Once the prosecution gets wind of this little development, prosecutor files a motion to vacate and place the defendant back on probation.
The trial court sets a hearing on the motion some 6 weeks out and about 2 months after signing the order early terminating.
Anybody know how long the trial court retains jurisdiction after probation is terminated? I don't know the answer but know just enough to be worried that maybe waiting that long would allow the trial court cover not to undo the previous order early terminating because he would already have lost jurisdiction over the case. Thoughts?
(And yes, I do think mandamus is a very viable option, but the motion to vacate seemed like a better start)
Hardy v. State, 297 S.W.3d 785 (PDR dismissed on 2/1/10), is pretty much the answer to your question. The order terminating was void and meant nothing. You can ask the judge to recognize that through a polite motion to reinstate or through mandamus. Also could have filed notice of appeal.
Thanks JB.
In my continued effort to be "polite" I will point the judge towards that case and hopefully alleviate the need for a hearing.
So, was there some ex parte contact that led to the order terminating?
quote:
Originally posted by JB:
Hardy v. State, 297 S.W.3d 785 (PDR dismissed on 2/1/10), is pretty much the answer to your question. The order terminating was void and meant nothing. You can ask the judge to recognize that through a polite motion to reinstate or through mandamus. Also could have filed notice of appeal.
So if the order granting ET was void, and I certainly agree that it was, then is there really a need for an order reinstating if the original order was without full force and effect of the law?
Just wondering...What about "asking" judge to summon defendant to court to advise him and his lawyer that the order granting ET was void, advise D that he's still on probation and that he's been on probation continuously since his order had no legal effect.