In 1999, defendent was sentenced out of Kerr County to 5 years TDC, probated for 5 years.
Last week he was convicted of DWI 2nd (Grayson) and sentenced to 1 year jail time + $4K fine.
The judge denied motion to stack our one year onto the 5 stating that he could not stack because def. had not been physically sentenced to jail in the '99 case. It seems as though he had the discretion to go either way since the '99 case was adjudicated, with def. sentenced to the 5 years jail time that was then probated.
Fortunately, there IS a motion to revoke there, and Kerr has the 2003 file. That judge also has the discretion to stack and may very well do so if he revokes instead of renewing the probation, but under 42.08, it looks like our judge also had the option to stack instead of running them concurrent, but he disagreed. Would really like to find some case law addressing this.
Posts: 79 | Location: Texas | Registered: October 09, 2003
Pettigrew, 48 S.W.3d 769. There must, of course, be some evidence to show the prior conviction. Turner, 733 S.W.2d 218. Also the statute does not very well address the stacking of a misdemeanor sentence on a felony. Certainly the statute makes clear that suspended sentence in the second case may be that it "begin when the judgment and the sentence . . . suspended in the preceding conviction has ceased to operate". 42.08 is hardly a model of clarity and should probably receive some legislative attention.
Judge in County A places defendant on probation. While on probation, defendant commits and is convicted and sentenced for a new offense in County B. After sentencing in County B, the Judge in County A revokes to original probation.
If Pettigrew says that "conviction" could be when the sentence is suspended or imposed, which Judge is permitted to stack his sentence? Both?
I would love to see the folks at TDC trying to figure out 2 judgments each ordering that the sentence not begin until the other ceases to operate...
Posts: 11 | Location: Williamson County, Texas | Registered: January 06, 2003
