We recently had a defendant open plea to the court and receive a sentence of 5 years TDC. Subsequently he filed a motion to impose shock probation, the trial court granted the motion and suspended further execution of the sentence for a probationary term of ten years. The defendant is now claiming he would have preferred to serve the remainder of his time in TDC rather than serve 10 years probation. The Defendant believes that it can all be corrected with a new trial. However, a new trial places the defendant back in the same position before punishment doesn't it? What options are available? Can it be changed? Can we require the Defendant to serve the ten years probation if he continues to seek shock probation?
The time to file a motion for new trial expired on the 30th day after sentence was imposed. TRAP 21.4(a). I do not believe there is any argument that the right to new trial arises again just because the sentence is later suspended under art. 42.12 sec. 6.
I suppose he could ask the court to reconsider its finding that the defendant "would not benefit from further imprisonment", or take Jane's approach and just violate a condition of the probation order, and get his sentence re-imposed. Your defendant should not be entitled to a new trial. He should, of course, be reminded to "be careful what you ask for."
