Scenario: in the same trial, defendant is found guilty of PCS in a DFZ, forgery of a govt doc, and forgery of a financial instrument. Jury gives him 60 years, 25 years, and 20 years, respectively (he was enhanced by priors). Judge sentences him and says all will run cc. State objects that DFZ can't run cc with other two under HSC 481.134(h). Judge sets case for status hearing less than 30 days out, recommends defendant file motion for new trial, and advises she will take up the stacking issue then. Judge advises parties to brief the issue and she will revise the judgment at the hearing if the law requires. Defendant files motion for new trial. At the hearing, defendant and counsel are present. Judge agrees stacking is required, pronounces new sentence, and remands defendant to the sheriff.

On appeal defendant now says judge couldn't change the sentence because he had already started serving it, and it would force him to serve his sentence in installments. Case law seems to say (a) that court retains plenary power to alter the sentence if a motion for new trial is filed within 30 days, but (b) that a modification must be made in open court, with counsel, before a defendant starts serving his sentence. See Aguilera, 165 S.W.3d 695.

My question is: how can (a) and (b) both be true? Perhaps (b) is true in the absence of a MNT? Or does (b) limit (a) in all cases with respect to sentences?

[This message was edited by JBS on 02-25-09 at .]

You might start with Wooldridge, 237 S.W.3d 714. If it was truly an illegal sentence, then the trial judge may have the power to correct. Check out the language in Wooldridge and see if it might apply.

A decision as to when a sentence commences is not an alteration of the sentence, but rather of how the sentence is to be served. See Oregon v. Ice. The initial pronouncement (allowing concurrent credit) was not authorized by law, i.e. was void. Thus, the defendant could not have begun to serve that sentence at that time. I would argue the void judgment can be corrected nunc pro tunc at any point.