Wow. You are actually viewing this post after reading the title? That tells me you have either: a) an inquisitive legal mind; b) no social life; or c) a stack of files on your desk that you are trying to ignore.

Most of the User Forum Gurus are "learning" at South Padre right now, so I appeal to my fellow prosecutors who are in their humble offices and courtrooms, selflessly doing the Lord's work this week (and who are actually sober). Here's the scenario:

The jury finds the defendant guilty of Class B Criminal Trespass. The jury then assesses punishment at a $1,000 fine probated and no jailtime. Is this a legal sentence? I have found (actually, Ray Thomas did the work!) a couple cases that hold that a jury can not impose a jail sentence and fine with only the fine being probated; however, I can not find a case specifically addressing a jury's ability to assess only a probated fine and NO jailtime as punishment.

Seems to me that Art. 42.12, sec. 4(a) CCP requires that the jury assess "confinement" as part of the sentence in order for the jury to then have statutory authority to recommend probation. What do y'all think?

In Guadalupe County, the jury gave a fine only sentence in County Court Number 2, the Honorable Frank Follis presiding (830-303-4188 *375). Having worked with him, I believe him to be one of the finest legal minds ever. The Judge imposed sentence. I believe that if he did it, it was because it could be done. You ought to give him a call.

Since the case does not appear to be one with a minimum period of confinement (e.g. DWI), it appears that the sentence is not an "illegal" sentence. Did the defendant file an application for probation (it seems like a lot of county courts overlook this requirement)? To me, the real problem is enforcement. If the defendant completely fails to comply with his terms and conditions, what do you do? Motion to revoke really would not work, since there is no term of confinement to impose. Maybe the trial court could revoke the "probation" of the fine, but then you just have a judgment for the $$ against a defendant who is almost certainly judgment proof.

See Rohret v. State, 41 SW3d 218 (Tex. App. Dallas 2001). I seriously question the correctness of this case. I do not think you can legally probate a fine-only sentence.

See art. 42.12, sec. 4(a), CCP: "A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend the
imposition of the sentence and place the defendant on community supervision."

I agree that the plain language of 42.12, Sec. 4(a) answers the question. Thanks, y'all!

The hypothetical jury verdict with which I began this thread really isn't all that hypothetical. This was a jury trial that took place while I was out of town, and now I'm trying to clean up the mess. The court informed me today that the defendant has filed notice of appeal. Since I am convinced that the probated fine-only sentence isn't valid, what happens next? Is error preserved for appeal, since neither the State nor the defense objected to the Court's charge on punishment? And what will the appellate court do? "Un-probate" the fine and reform the sentence in that manner, or kick the case back and remand for a new trial on g/i? Your advice and best-guesses are appreciated.

Check out Ex part Shoe, 2004 Tex. App. LEXIS 430 (Tex. App. � Ft. Worth 2004) (op. on remand) (defendant collaterally estopped from appealing illegal sentence after accepting benefit of no fine). The State can't appeal the punishment because probation is not a sentence (and they didn't object).

Thanks for the cite! Far be it from me to go to the well too many times, but do you have the appellate cause number for the Shoe case? Thanks!

Ex parte Shoe, 137 S.W.3d 100 (Tex.App.-Fort Worth 2004, pet. filed). Shoe involved a guy that plea bargained for an illegal DWI sentence and then waited 5 years until after his felony DWI conviction to start complaining. I would think your guy would win if he attacked his illegal sentence on direct appeal -- of course, why would he?

It would be a classic, though, if you could treat the fine only probation like a regular probation. If the defendant messed up, instead of revoking him and imposing the fine, you could assess him 30 days in jail as a condition of probation!!

I (defense lawyer) was consulted today by a guy who just got out of the pen with this sentence from Palo Pinto County in 2000: "Twenty years IDTDCJ not probated" and "$35,000 fine, suspended and probated for a term of 10 years". I actually saw the judgment. This thread immediately came to mind as my head began to spin.

Misdemeanor A plea agreement.
Fine $2K, with $1K suspended, comm. service & other conditions. Proper or improper (deal or no deal)? Explain

Pardon my ignorance but what happens if the probation fees exceed the fine amount?

quote:

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Originally posted by AlexLayman:
Pardon my ignorance but what happens if the probation fees exceed the fine amount?

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Why would anything happen? The probation fees are an entirely separate matter from the fine amount. In felony cases, the fees will routinely exceed the total fine over the course of probation. At $50 month, you're paying $600/year in fees.

Your questions assumes there is some connection between the fine and the probation fees, but there is not. It's sort of like asking what happens when your water bill exceeds your electricity bill.

I was wondering why the convicted person wouldn't withdraw his application for probation and pay the fine?

quote:

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Originally posted by Waco:
Misdemeanor A plea agreement.
Fine $2K, with $1K suspended, comm. service & other conditions. Proper or improper (deal or no deal)? Explain

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Sorry, left out part. Deferred Adjudication. Conditions include $2K fine, costs, and a couple of others that are specific to his/her case.

The question meant: rather than limiting the fine to $1K as a condition of the plea or setting it high ($2K), the condition is $2K fine with $1K suspended. If he/she keeps his/her nose clean, the offense is never adjudicated and he/she's only out $1K. On the other hand, if he/she violates (which is likely, and is the reason behind the 'added incentive') . . . another $1K goes down the drain.

I don't think the CCP authorizes your proposed punishment. You can impose or not impose a fine in a deferred, but you can't construct a party imposed and party probated fine in a deferred adjudication. Sort of a double negative.

I suppose you could impose all of the fine and agree to early termination if half is paid and all other conditions are completed by a particular date.

I agree. You can't do probation on the fine and deferred on the time, because deferred adjudication is no finding of guilt. Without a conviction, you can't suspend the sentence, fine or otherwise.

Besides, if you want to have him pay $1000 and give yourself the option to increase the fine if he violates, you already have that ability with the deferred. If he violates, you adjudicate and sentence him to a $2000 fine.