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New case/arrest necessary when upfile B to A

This topic can be found at:
https://tdcaa.infopop.net/eve/forums/a/tpc/f/157098965/m/3327024516

April 20, 2016, 15:12
japonder
New case/arrest necessary when upfile B to A
So I was brought this question by other prosecutors in the office, and after spending an unproductive hour on Westlaw (maybe I'm just not using the right search terms), I'm no further ahead than I was before.

Currently, it is my County's policy to file a new case and have the defendant rearrested, etc. (and old case dismissed after the new arrest) when we want to change a misdemeanor brought to us as a class B to a class A. I know that other counties file the case as an A, and just have a judge inform defendant of his new punishment range prior to plea/trial.

I'm trying to find some form of authority that says the latter is ok, and defendant doesn't need a new arrest/bond etc. Does anyone know of an authority or have suggestions for search terms?

Thanks a bunch!
April 20, 2016, 16:14
Jon English
You're looking for CCP Ch. 23. And the upshot is that you don't ever have to re-arrest someone if they've already been arrested. Even if you indict them after they've been arrested once, you can do a summons instead of a capias.

Art. 28.10 of the CCP says you can amend an information to actually charge a different offense (which is what happens when you take a DWI B to a DWI A, or a theft, etc) if the defendant waives his objection. That situation can come up in plea bargains, but apart from that, you're going to be better off dismissing your Class B and refiling as a Class A in my opinion.