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First one of these I have seen: Defendant(female) convicted of assault(family violence) and placed on probation(not deferred)has now filed a motion pursuant to 42.12 (20) to terminate the probation and have the conviction set aside. If successful, does that negate my ablility to use that conviction for enhancement if the same crime is committed again? How are others handling these motions? Defense counsel has asked that I consent to the motion....FAT CHANCE. | ||
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The provision that seems to allow the judge to set aside a conviction is definitely unconstitutional, as no court has authority to undo a conviction in that manner. However, the constitutional issue is moot as to your question, because a separate provision allows you to come back and use the conviction for enhancement purposes at a later date, even if undone by the early release. Tex. Code Crim. Pro. art. 42.12 sec. 20(a)(1-2); Tex. Pen. Code sec. 22.01(f) (noting that conviction is available even if "the defendant was subsequently discharged from community supervision"). | |||
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