I have a judge who will not let me give any deferred sentences under 12.44(a) or (b). Does anyone know of a way to get around this?

Example: Defendant charged with Poss CS less than 1 gram. Plea is 2 yrs deferred under 12.44(b).

Although I do not endorse the procedure, some prosecutors reduce the charge to attempted possession. Others will file a new misdemeanor case if a misdemeanor drug is also found and dismiss the felony.

Of course, anytime a defendant is willing to acknowledge guilt and pay court costs and a fine and submit to some supervision and you think this is a reasonable or necessary resolution, you have the option of merely dismissing the charge (since presumably seeking to obtain a conviction is viewed as too risky or a waste of time/resources). Not a pleasant experience for anyone (other than the defendant and his attorney), but sometimes a required step when the court has an unreasonable bias against the law.

I'd like to hear why it would be an appropriate sentence. It doesn't strike me as unreasonable for a judge to refuse to approve such a bargain.

[This message was edited by John Bradley on 02-19-05 at .]

[This message was edited by John Bradley on 02-19-05 at .]

Let me clarify: the judge believes that in order to accept a plea pursuant to Sec. 12.44(a) or (b), that there must be a final conviction. Therefore, he will only allow straight probation and no deferral. Obviously, a deferral does not end in a final conviction.

I want to proceed under 12.44(b) on the Poss of CS less than 1 gram with 2 years deferred, plus fine. The judge will only allow straight probation, plus fine.

Stick the D with a $500 fine for possession of paraphernalia and get on down the road. Doesn't this come under the heading of the battle you don't need to fight?

Once you look at 12.44(a) and read that there must be a conviction, I can certainly understand why a judge would not accept deferred adjudication. But, under 12.44(b), it isn't so clear. It looks like you could arguably proceed under the misdemeanor punishment range without a conviction, thereby including deferred adjudication.

I agree that it is possible to get deferred under 12.44(b), but my judge does not agree. Accordingly, I have drafted some legislation that is in the process of getting introduced to clarify this.

My judges don't read it the way yours does, although they refuse to accept misdemeanor pleas entirely (not on legal grounds, it is just their policy). What we have taken to doing is getting the district court to sign a form "authorizing the prosecuting attorney to prosecute intitially for the lesser category of offense." We then file the authorization, along with a complaint and information (which may be overkill, since these are indicted cases) in county court-at-law.

This procedure would then circumvent your judge having to sign off on the plea bargain, since the county court judge is the one who actually does the sentencing.

At this point, no one has ever given me any reason to think this procedure is not legal (that is not a challenge to anyone to provide me one, by the way), and all it requires the district judge to do is sign off on handling the case as a misdemeanor, not approve the plea bargain.