I doubt this has happened before, but I thought I would check. In 1996 Defendant waives trial by jury pleads guilty and prosecutor makes recommendation as to punishment in accordance with the parties' negotiations. Arguably acting pursuant to Ortiz, 933 S.W.3d 102, as my judge normally attempts to do, without specifically advising defendant that he will accept recommendation (to serve 7 years) he does so "subject to" changing his mind after examining a PSI. Defendant fails to appear for sentencing. In 2002, Defendant is relocated and brought before the court, presumably for sentencing. Instead trial judge, states he has determined not to accept the State's recommendation. Defendant is permitted to withdraw his guilty plea. What we suspected at the time proves to be true: the drugs allegedly possessed by the defendant are now lost and the criminalist who examined them at the Waco DPS lab left in 1996 and was last known to be in Wisconsin. Can the trial judge now again change his mind and sentence the defendant in strict accordance with the 1996 recommendation? Or has specific performance of the agreement now become impossible, meaning the trial court must treat the plea as withdrawn as suggested by Zinn, 35 S.W.3d at 287? Needless to say, this guy's new trial will be a no trial. That just doesn't seem to be a reasonable interpretation of 26.13(a)(2) and Ortiz says jeopardy doesn't attach until the court accepts the bargain. I recently read a case where the trial judge stated she was granting a mistrial, then went into chambers and "cooled off", came back into the courtroom and announced she would instruct the jury she misspoke. The court said the trial could have proceeded.

Why not just prosecute the defendant for bail jumping, something we can prove?

An indictment for bail jumping will be sought. I just thought it might be nice to preserve the other case as well. But, the defendant may also have a defense under art. 12.01(6) since an indictment for bail jumping was not returned against him within 3 years of the original sentencing date. My argument is, however, that the failure to appear is a continuing offense. Will that work? Howlett, 900 S.W.2d 937; U.S. v. Santana-Castellano , 74 F.3d 593 (re-entry by alien); Fogel v. U.S., 162 F.2d 54 (fail to register).

We have taken the position that the failure to appear occurred on the day that the judge called the case for court, and the statute of limitations runs from that date. We try to indict on the bail jumping shortly after the failure to appear, to avoid limitation issues.

I suppose you could ask the judge to call the case again and, once again, have the defendant fail to appear. But, now that he is back in custody, that isn't likely to happen.

Once again, John is right! However, you may be able to obtain a timely indictment using CCP Art. 12.05 (a) if you can prove the defendant was out of state for a long enough period of time.

Certainly there is nothing wrong with indicting for bail jumping as soon as it is clear the defendant did not just have car trouble on the way to the appearance. Bond forfeiture law also seems to hinge on notice to the surety of a specific date for an appearance. But, I find no case law to answer the issue of whether the "fails to appear" language continues to attach liability beyond a single date. Failure to provide support has been interpreted as a continuing offense. And the bond (conditions of release) usually talks about remaining before the court from day to day and term to term until discharged. The bond must state the defendant is bound to appear "at any time . . . when his presence may be required". Once the defendant has missed his known court date (recognizes his status as a fugitive) can he not be accused of violating 38.10 intentionally or knowingly at all times thereafter? That was the holding of the Nevada Supreme Court in Woolsey, 906 P.2d 723.

[This message was edited by Martin Peterson on 11-14-02 at .]

Given the Court of Criminal Appeals' attitude toward escape (completed when you clear the secure area), I wouldn't hold out a lot of hope for bail jumping as an ongoing offense. I suppose you could pick the day before the defendant was caught as a date of the offense, but no one asked him to appear on that date.