Have a hearing this afternoon a probation revocation. Defendant initially placed on deferred adjudication for aggravated sexual assault of a child. There is a hearing to adjudicate guilt in 2008 where the judge finds true, adjudicates guilt, and sentences defendant to 20 TDCJ probated for 5 years. No one objected to the fact this isnt allowed at the time.

Now we have filed a motion to revoke probation. What is the effect of the judgment that sets forth an improper sentence? Is he still technically on deferred? How should the judge sentence him given that judgment?

Would appreciate suggestions!

Wow. Judge can't give probation for sentence over 10 years. And, judge can't give regular probation, regardless of the the sentence, for aggravated sexual assault of a child.

The sentence of 20 years in prison is fine. That sentence is within the range available for a first degree felony.

Probating that sentence, however, is illegal for two separate reasons: type of offense and length of sentence. Based on past case law, however, the State may have forfeited its right to complain by failing to object at the time of the suspension of that sentence.

Now, however, it sounds like it will be the defendant complaining, as he is close to heading to prison. But, what is his complaint? That he received the benefit of probation when he should have been in prison?

Proceed to a revocation and get a prison sentence. Then, court of appeals can sort it out on direct appeal.

You may want to prepare for an argument from the defendant that he is entitled to credit for his "street" time since he was erroneously released through (supposedly) no fault of his own. I'm sure there is some authority on this, but cannot find it right now - it has been a year or so since I looked into it.

Seems like I read a case somewhere that says that an illegal sentence is void ab initio. If that's the case, then there never was a final sentence when the 20 yr probated sentence was announced. If that's the case, could you do a Nunc Pro Tunc & have the correct sentence ordered post facto?

If he was admonished on possibility of the greater punishment of 20 yrs, it seems that he can't complain of the lesser punishment. He might even agree to it to avoid being sentenced to an invalid sentence that he'd have to appeal.

Curious how it turns out.

Neither side addressed the issue specifically at the revocation hearing. Judge revoked the defendant's probation and sentenced him to 10 years confinement. The issue likely wont be appealed now.

Two possibilities if he did appeal it 1) judgement changed to 10 years probation or 2) deferred order put back in place. Neither puts the defendant in a better position and once puts him in a worse position (facing the entire punishment range).

Sounds like a good resolution.