You have a defendant charged with both a state jail felony and a third or second degree felony. Assume stacking is not an option. Do you bargain with more emphasis on the SJF or on the other felony? Let's say he's willing to accept 21-24 months in State Jail but only if he gets 3-4 years on the other. My belief is he will be incarcerated longer on the State Jail sentence than is necessary for mandatory supervision release or at least release on parole on the other felony. But he will be subject to a lesser period of supervision after serving the SJ sentence. So, is it better to bargain for lesser time on the SJF and say 6-8 years on the other felony, even though this means he will likely return to the streets in less than 21 months? Which is better, longer assured incarceration up front or a longer period of constructive custody with supervision upon parole at the tail end?

I'm for shorter sentences.

Does that mean you think the better sentence is shorter and the defendant thinks the shorter sentence is better? It was a serious question or at least a question asked seriously, i.e. in the hope of obtaining some useful input. If its my syntax you are having a problem with, just let me know, I'll be happy to elaborate.

If you're concerned about post-incarceration supervision, don't forget about shock probation particularly on those State Jail felonies. And then there's up front time as a condition of probation with all sorts of confinement options to play with later on, e.g., SAFPF for drug offenders, Intermediate Sanction Facilities, etc. If it's important enough, you can maintain a lot more prosecutorial control over an offender by being creative with straight or Shock probation rather than relying on the parole folks to catch a problem down the road.

Also, if your defendant won't go for a 6-10 year sentence on a regular felony, instead wanting State Jail time, just keep in mind that those 2 or 3 year sentences on regular felonies work just as well for enhancement purposes later on as the 10 year sentences do.

I agree with Lee. I would much rather give him a third degree conviction to follow him around for enhancement purposes. You would be doing the next prosecutor a favor.

If the defendant is likely to continue working in the state jail felony category, a future prosecutor would benefit much more from a prior SJF conviction (or two). That prior 3rd degree felony won't do any good in enhancing a SJF.

The Defendant will get both a SJF conviction and a 3rd degree conviction. My question concerns whether you would generally consider it more important that he serve more time now as a trade off for a lesser period on parole, or bargain for less incarceration now and a longer period of parole (on the 3rd degree charge). In my estimation he will have to receive more than 7 years on the 3rd degree before he is actually required to serve more than 24 months. Given the luxury of getting both convictions, which one should you seek the harsher sentence on. In either scenario I have accomplished all I can toward future enhancement. I'm just thinking it might be better to shoot for a longer sentence on the 3rd degree although this may result in an opportunity to commit his next crime in the "free world" quicker (because you agree to recommend a 12-18 month SJF sentence in return).

Why is stacking not an option? That is what gives you the most control over a defendant, several years out. Parole gives the DA no control over the crook, and leaves his revocation entirely in the hands of state employees who answer only to an outfit in Austin. Whenever I have a crook with two felony charges, I usually like to give him time on the lesser of the two, with deferred on the more serious, to start upon his release from prison.

The exception to this rule is where the lesser felony is a State Jail Felony. From what I have learned, the State Jail that serves our area is extremely dangerous--much worse than many of the TDC units. Unless the def. is a true "tough nut" who can live in that enviroment, I avoid State Jail time. I'll give the guy TDC time on the 3rd degree felony, and stack a probated SJ case on top.

Stacking would be a possible option if I wanted two trials and two appeals. But my judge's 42.08 decisions are not entirely predictable and I am not necessarily a fan of trials under the circumstances, even if I thought they were easy wins.

So the State Jails reserved for non-violent property and drug offenders have become more dangerous than the ID units. Amazing. In any event, as I understand the way it works, my guy will go to ID for a while first, and then go to the State Jail to serve the remainder of that sentence (if any).

Shannon, would you please get the CCP amended to give judges more discretion to order stacked sentences arising from a single trial?

Martin, your answer to Terry's stacking suggestion seemed to indicate you didn't think the defendant would agree to a stacked sentence. We negotiate stacked sentences in a plea frequently. The only thing you have to be careful about is to remember that you can't stack a deferred (must be a conviction). With a third degree felony that won't matter anyway.

If the defendant is really likely to reoffend, I would go for the longer state jail sentence and the shorter prison sentence. Then you've kept him off the streets for as long as possible, delaying his next offense, AND made him enhanceable if it's third degree or above.

quote:

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Shannon, would you please get the CCP amended to give judges more discretion to order stacked sentences arising from a single trial?

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John, I could get the Lege to pass a kidney stone if it would increase state revenues or cut spending [insert rim-shot here]. Unfortunately, this will do neither, but I'll put it on the list ...

Shannon, are you now the Brian Wice of TDCAA [badumpabump]?

To me it would depend on the person. If I feel he'll be out again and doing his thing, then I'm not going to worry about a few months. I'll try to get him on the 3rd or 2nd because the next time around, and in my experience there is almost always a next time, he's looking at real time. State Jail convictions don't have the impact on a jury like the real thing IMO. Although most prosecutors don't think much about it, the jury listens to the reading of an enhancement paragraph at the punishment stage and if the defense has not been totally honest or has mislead
the jury about his client's past, it has an effect.
Hawk

[This message was edited by Hawk on 01-05-03 at .]