Question: if a defendant is charged with a drug offense, for which the minimum punishment is 15 years, may a court grant him deferred adjudication on a plea of guilty. 42.12 �3 seems to indicate no since the minimum period of probation would exceed the maximum allowable. However, 42.12 �5 is silent as to minimum punishment and only cites specific offenses which may not be given deferred. My reading of the "Perfect Plea" seems to indicate that it can be given. Any thoughts?

A literal reading of the statute supports the idea that even a capital murder defendant could receive a deferred adjudication of guilt. One has to wonder whether the Legislature, in enacting this provision, really intended it to be broader than sec. 3 (as limited by sec. 3(e)(1)). Perhaps it thought that no court would ever find it to be in the best interest of society for someone charged with those offenses carrying an enhanced range of punishment deserving of community supervision. Yet, it does appear the court has that option so long as the defendant pleads guilty.

In the Perfect Plea, I take the position that deferred adjudication is available for everyone that is not disqualified by the list provided by the Legislature (intoxication offenses and second sex offenders).

As has been discussed in another posting on this site, I have previously agreed to give deferred adjudication to a defendant who was a habitual offender. He pled guilty to the new offense and true to the enhancements. He got 10 years deferred adjudication.

He later violated with a new offense and was adjudicated guilty. The judge then found the enhancements true and gave him 40 years in prison.

This is a particularly effective tool for those defendants (as was the above case) who claim they need just one more chance at treatment (for a drug or alcohol problem). Given the availability of the substance abuse felony punishment facility and the push for considering treatment in more drug cases, I am only too happy to oblige when the case supports the risk.

There is a case that specifically says the Court can give deferred to habitual offenders (where the minimum is 25 years). It is Cabezas v. State 848 SW2d 693 (Tex. Crim. 1993). The Court does state that "while technically possible, we cannot imagine a scenerio where a Judge would determine that the best interests of society are served by giving a habitual offender deferred".

This issue has come up on this site before: see prior discussion.

John, since we have such short memories, there was a vote and you were selected to prepare an index of the forum topics.