I am in the middle of a state jail POM trial. Jury has found defendant guilty. Defendant has filed election to have jury assess punishment. Defendant is a convicted felon. Defense proposes having jury assess punishment and then go to the judge to request that it be probated. This cannot be right. Does anyone have any case law out there that says a judge cannot probate the sentence and must order confinement?

I am telling the judge the only way for defendant to get probation is to have the judge assess punishment and not the jury.

Please help ASAP.

Did the defense file a probation motion prior to jury selection? If so, they have to prove probation eligibility. At that point, introduce your pen pack to show that he's not eligible under CCP 42.12, sec. 4(e). If the jury finds that the information in the defendant's motion is not true, then no probation recommendation. If the defense didn't file a motion prior to trial, then they can't even ask the jury for the rec.

And assuming he properly swore out his request for probation, then charge him with aggravated perjury.

Don't forget about perjury when the Defendant tries to prove probation eligibilty.

That helped me when I had problems getting an out of state felony prior in front of the jury and the defense was considering asking for probation.

I understand what you all are saying about the perjury. The problem was that the defendant filed a motion to have the jury assess the punishment and admitted to a prior felony conviction in that same election on punishment. However, the defendant then, after having the jury assess the confinement length, wanted the court to probate the sentence. This is where I had the problem. Can a judge probate a state jail felony sentence after the jury has assessed punishment?

I say no. However, I cannot find a case on point ...

The good news is that the jury assessed 24 months state jail and a $10,000 fine. When the defendant asked the judge to probate the sentence, it was promptly denied.

Cory, the topic was the subject of a prior discussion. Round 1

Yes it was, thanks Martin.