I'm searching for some guidance. A defendant was placed on straight probation for aggravated assault with a deadly weapon finding. Since it was a 3g offense the probation should have been deferred not straight. The defendant has violated the conditions of probation and I'm wanting to revoke. Due to the previous error is the judgment okay, void or voidable? What's the remedy to correct it? Any help or guidance would be much appreciated.
See Levy, 818 S.W.2d 801 (no plea bargain). But, the court later held that a void probation order is not the equivalent of an illegal sentence, nor does it affect the voluntariness of a guilty plea. Williams, 65 S.W.3d 656 (overruling Heath, 817 S.W.2d 335 in part). But, it seems a defendant might still be able to argue he did not have to comply with the order or that a revocation order is meaningless (since an unauthorized order does not gain validity merely by the passage of time or acquiescence). Estoppel does not breathe life into something not entitled to breathe.
Nevertheless, there may be an argument that such a claim can be forfeited. See e.g., Best, No. 02-14-00186-CR (Fort Worth 4/9/15) (no precedential value). Then again, maybe the State is estopped from using its acquiescence against the defendant? See Robinson, 498 S.W.3d 914 (recognizing an unauthorized probation order as "void" and that mandamus relief could be pursued by the State).
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