On Wednesday, the CCA issued a per curiam opinion that seems to make a significant change in how a defendant may seek credit for time served while sitting in prison. Previously, he filed a writ.

In Ex parte Ybarra, the CCA tells the defendant that his proper remedy is to file an application for writ of mandamus with his local court of appeals. Seems the defendant did not get relief from the trial court when he filed a motion for nunc pro tunc, attempting to correct what he thought was the credit given on his judgment.

So, will we now be seeing a flood of applications for writ of mandamus directed to courts of appeals by pro se inmates? How is that better?

There is no process in a mandamus proceeding for developing evidence. Indeed, such orders are based on the judge refusing to perform an obviously ministerial act.

Sounds like we better start paying more attention to those motions for nunc pro tunc and having the judge enter a specific order on why it is denied. More work for us, eh?

I'm usually the person in my office who handles those requests for back time credit, but they are almost always writ requests or letters to the judge. I wonder if mandamus isn't actually a more difficult process for inmates to have to go through (difficult for the inmates, I mean). Assuming you get into a contest about it, is there any provision for the inmate to get a free trip back to county for a hearing like there is in writ cases? If not, it seems he'd be hard pressed to make his case.

How about this case for explaining how prosecutors and judges can cut off lengthy post sentencing arguments about back time credit? Click here for the opinion. Bottom line: include credit as a part of the plea agreement and be done!

It has always made more sense in negotiating the length of the sentence to take the time credit issue into account. This takes the power away from the court to later modify the agreement contemplated by the prosecutor by finding more credit (or sometimes the defendant by finding less credit). We have spent a lot of time trying to figure out credits and litigating them after the fact. This is my vote for one of the best (practical) decisions of the year.

quote:

---

Originally posted by JB:
How about this case for explaining how prosecutors and judges can cut off lengthy post sentencing arguments about back time credit? Click http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=16211 for the opinion. Bottom line: include credit as a part of the plea agreement and be done!

---

I agree, JB. This is an important case for the proposition that prosecutors and defendants can conclusively establish the jail credit allowed a defendant by negotiating it before the plea. Prosecutors should calculate what they think it should be, notify the defendant in the plea bargain proposal as to how much credit the prosecution intends to agree to. Then when the defense signs off on it, the agreement settles the matter.

If we do this, can we start attaching copies of the plea bargain agreement to the WHC and Motions Nunc pro Tunc to cut off claims that we miscalculated their time credit? I think so. Collins essentially says if defendant agrees to accept a certain time credit then he waives anything else.

Just as Rick and Ilsa will always have Paris, criminal defendants will always have ineffective assistance.