Baker, 107 S.W.3d at 673 holds that when three separate offenses are heard by the court "in one plea proceeding at the same time" and the appellate court is able to characterize the offenses as "arising out of the same criminal episode", the trial court is prohibited from stacking the sentences. The court states that whether this occurs is discretionary with the State. My judge routinely asks whether the parties have any objection to hearing multiple cases "together" when considering guilty pleas to such offenses as multiple burglaries, thefts, forgeries, drug possessions. Generally these offenses have been separately indicted with the idea that they might result in stacked sentences.

But, arguably even if the parties have agreed to consecutive sentences, the court would have to follow sec. 3.03 if the offenses were prosecuted in a single criminal action. Thus, we must hereafter be very careful to "proceed under sequential actions where each proceeding is conducted separately" if we want to assure the possibility of consecutive sentences. It seems wrong to me to apply this provision to guilty plea proceedings, but it appears that that's the way it is. John, is this issue covered in your book?

[This message was edited by Martin Peterson on 08-11-03 at .]

I guess Baker is nothing new. After consulting The Perfect Plea, one finds at pages 29-30 reference to this problem. Now I am curious why none of the cases the author cites were mentioned in Baker.

The simplest way to avoid getting smacked down on appeal of a stacked sentence following a guilty plea is to make waiver of the stacking limitations an express part of the plea agreement. The Court of Criminal Appeals made that clear in 1997: Ex part McJunkins, 954 SW2d 39.

In addition to covering this subject in The Perfect Plea, as Martin mentioned above, I authored an article for The Prosecutor, titled, "Stack It, Stack It Good!" You can access that article in the Forms, Briefs, et al. section of this web site by just typing "stack it" in the search engine.

There is a brand new stacking law from the most recent legislative session. Does anyone know what it does?

[This message was edited by John Bradley on 08-17-03 at .]

[This message was edited by John Bradley on 08-17-03 at .]

[This message was edited by John Bradley on 08-17-03 at .]

I think you're talking about HB 2892. Among other things, it created a new enhancement for manufacture and delivery of controlled substance cases. If the controlled substance causese serious bodily injury or death, then punishment is increased by one degree (up to first degree felony) and the sentence may not be run concurrently with any other sentence imposed by the court. This bill was in response to all the heroin overdose deaths of teenagers in Plano a few years back.

Congratulations, John, you win the valuable prizes. People should know, though, that you were an ever-present participant in the regular legislative session.

Sorry JB, I didn't know the contest had started. Me and members of my family are, of course, ineligible under the rules of "What Was the Legislature Thinking?"