How is the CCA decision in Beal to be read - especially when trying to add subsequent enhancements.

Beal states finality is not until the appellate court issues mandate

If defendant commits new crime in 2002, previously convicted of a crimes in 1995 and 1997 but the 1995 conviction did not become "final" until mandate issued is 1998 - can the 1997 crime be used as a subsequent conviction?

Any suggestions?

While that is not the holding in Beal, I think you are probably right. The 1995 and 1997 offenses may not be sequential under 12.42(d) because the 1997 offense did not occur subsequent to the first (1995) previous offense having become final (under Beal) since the relation back doctrine is gone. The Beal decision once again encourages frivolous appeals to avoid liability for an enhanced penalty.

Arbuckle is based on the idea that we enhance punishment only for a failure to reform after serving a sentence. But what if the person served the sentence during the appeal? The point missed by the court is that by the time of Beal's trial we knew the allegation about Beal's prior was true (or would not become false). In my mind it is not important whether Beal could correctly predict the outcome of his appeal at the time of the new offense. The jury should at least have the option of enhancing his punishment as a second-time offender if the prior conviction was affirmed.

I have proposed a bill which includes the following language: "For the purposes of this section, unless and until such judgment shall have been set aside by a court as provided by law or upon a pardon in accordance with Article 4, sec. 11 of the Constitution, a person shall be considered "convicted" of an offense if the offense was committed prior to commission of any element of the offense for which the defendant is on trial and a written judgment adjudicating his guilt has been signed. A judgment of conviction shall not be considered to be set aside by an order granting community supervision under art. 42.12 sec. 6(a) or sec. 15(f)(2) of the Code of Criminal Procedure. Any person whose punishment shall have been determined in accordance with this section based on a prior conviction which is subsequently set aside shall be entitled to be resentenced within the range of punishment otherwise applicable to the offense."

That's what the law as to repeat offenders should be. It is not the status of the prosecution of the earlier offense, nor the status of the conviction, nor whether the offender served time in the penitentiary that makes a repeat offender more dangerous. It is his previous conduct. See Davis v. Estelle, 502 F.2d 523. Arbuckle and Langley, 833 S.W.2d 141 and Beal all represent poor policy decisions, if not downright twisting of the language of the statute.

[This message was edited by Martin Peterson on 01-06-03 at .]