I have a defendant who was tried and convicted in absentia, and the judge assessed punishment this morning. For an extradition request or red notice application we need a judgment and committment order or record of conviction. This is the first time our office has had this issue come up. Anyone have a form that's worked in this kind of situation?

At what point did he disappear, or was he NEVER a part of any proceeding? Since you're discussing extradition, I assume this is a felony case. If he was never in court at all, you have problems.

Art. 28.01. PRE-TRIAL.

Sec. 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State's attorney, to appear before the court at the time and place stated in the court's order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding.

Art. 33.03. PRESENCE OF DEFENDANT. In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case.

Art. 42.03. PRONOUNCING SENTENCE; TIME; CREDIT FOR TIME SPENT IN JAIL BETWEEN ARREST AND SENTENCE OR PENDING APPEAL.Sec. 1. (a) Except as provided in Article 42.14, sentence shall be pronounced in the defendant's presence.

(Art. 42.14 deals with pleas in absentia, not trials.)

[This message was edited by Gretchen on 08-23-10 at .]

He was present when the jury was sworn. Punishment was assessed but sentence not formally pronounced.

We're just looking for a judgment in absentia form for this type of situation.

There is no final judgment until he returns and the sentence is formally imposed. We had such a case. Defendant fled during punishment hearing. Jury finished its job: life. Judge formally sentenced 20 years later when Defendant was returned from Pennsylvania. For details, contact Robert McCabe or Tommy Coleman in our office at 512-943-1234.

Incidentally, then defendant wanted to appeal. Record of trial testimony was long gone. Defendant also lost that argument as the loss was in part due to his taking off for so long.

I have made the argument that the sentencing is purely ministerial and that the appellate deadline should run from the time the sentence is determined by the court/jury. I lost it in that case, but think it might be viable to take on up. Seems wrong that if he stayed, didn't like the sentence, appealed and ran that his appeal would be dismissed, but if he runs prior to that he gets an appeal.

That would make for a good amendment to the Code of Criminal Procedure and the Rules of Appellate Procedure.

Ah - that makes much more sense. Thanks for the clarification of your situation.