12.42(a)(1), P.C. provides that if the defendant has previously been finally convicted of two state jail felonies he shall be punished for a third degree felony. If Defendant was convicted of say two or more counts of forgery or burglary in a single case and went to state jail (sentences concurrent), is she now subject to this enhanced penalty? I cannot seem to find a published opinion on the meaning of this statute. Anyone else trying this with success?

I note same issue would arise under 31.03(e)(4)(D), but no case seems to have been decided in that context either.

[This message was edited by Martin Peterson on 03-07-03 at .]

Good question! I started dividing my cases like this for future enhancements. I do not know your answer. I suspect you cannot enhance.

There is nothing that requires state jail felony offenses be sequential convictions. Any two state jail convictions are sufficient for enhancement of the next state jail felony to a third degree felony. Don't go reading things into a statute that don't exist.

John, I agree with you. Each count in an indictment should represent a separate offense (even though they were joined for purpose of trial). I realize you are even at odds with the Amarillo court over whether a single or separate judgments should be used. Are you aware of any case (published or not) that agrees with us, or is this a case of first impression?

Martin, for a county with two prosecutors, you sure seem to have a lot of time to speculate over many issues. What happened to the days when the statute meant exactly what it said? There is not one word in the law hinting that the two convictions need to be separated by anything.

Under your theory of law, every word in the penal code is a basis for a case of first impression. No meaning is safe until an opinion issues from a court of appeals.

At some point, we have to trust the words to mean what they say.

Beyond that, I can only say that I assisted in drafting the statute and recall that no one intended for the multiple convictions to be sequential or separate. But I am sure some enterprising young criminal defense attorney will read your posting and raise the issue, giving us a written opinion.

Gee, it is more than speculation. Its been raised by some enterprising defense attorney and now I have to respond. For some reason my judge often likes to see something more than the words of the statute, no matter how clear they may be to me. It is strictly for that reason that I would much rather it not be a matter that has not been addressed by an appellate court. Has nothing to do with my theory of the law or statutory interpretation.

I just thought someone else had probably obtained a third degree conviction or two under these facts, because I see a lot of state jail multi-count indictments. In my case, the prior case had nine counts. So on offense #10 I really thought she deserved a 3rd degree. For some reason the defense attorney would like to treat it as offense #2.

I think the answer is yes because if you read the entire section 12.42 about habitual offenders you will notice that in both (a)(2) and in (d) that the dudes who wrote this law spell it out when they intend to require separate subsequent conviction events.

So then by implication the other parts of the section do not have that requirement... I mean they obviously were not at a loss for words. You see what I mean?

Please forgive me if I messed up the cite or terminology because I'm not a lawyer.

Don't worry, you don't have to be a lawyer to read English. Frankly, it probably helps if you aren't a lawyer.