Defendant was convicted of burglary of a habitation in February, 2001 and was given 10 years probated for 10 years. Defendant's probation was revoked in May, 2002 and he was sentenced to 5 years ID. Then, in February, 2006, after his release from prison, but not from parole, Defendant was arrested in possession of a pistol.

Question: Which is the proper date to allege in the indictment for felon in possession of a firearm? (1) February, 2001, the date of the original conviction; or (2) May, 2002, the date the probation was revoked and the defendant was sentenced to prison?

Half the office thinks (1) and the other half thinks (2).

Help...

You would allege the date that he was actually in possession of the firearm and then also state upon what date his conviction became final. Or vice versa.

The argument around here is the proper date that the conviction became final -- the date of the original conviction in February 2001 or the date his probation was revoked -- May 2002.

The only problem with using the date the defendant was placed on probation is when the judge had signed an order under 42.12 dismissing the probation and releasing the probationer from the penalties and disabilities resulting from the offense. Here, that is clearly not the case so you could likely use either one. I would probably go with the date he was revoked.

[This message was edited by Cory Crenshaw on 06-30-07 at .]

Both sides are right since PC Sec. 46.04 does not require a final conviction. You could use either date and be correct.

I think the date of conviction was the date that the judge said "I find you guilty of...", which is the date of the probation. The date of the revocation is the date that the sentence previously suspended was actually imposed (and thereby made final). The first is the date of conviction, the second is the date the conviction became final. Ultimately, it doesn't really matter though since you're just putting the defense on notice on which conviction you're saying makes him fall into the category of "convicted felon".

Analogize it to enhancement paragraphs. I use the date of the final judgement in the pen packet - which would be the date the defendant is sentenced to TDC (whether that be the original plea or the revocation of his probation). I think the "final" date is the date his probation got revoked.