Defendant is charged with a Felony DWI and has a final conviction for a State Jail that was enhanced to a 3rd degree under 12.42(a)(2) (two prior SJF convictions) and prior to the commission of that offense a prior final conviction for a 3rd degree; any thoughts on the punishment range?

[This message was edited by John Greenwood on 07-19-11 at .]

12.42(e) removes the enhanced state jail under 12.42(a)(1)[two prior state jail = 3rd degree range) from enhancement for habitual offender purposes...but your post is talking about 12.42(c)(2) enhancement [auto-life for subsequent sexually oriented crimes]...?

i'm thinking its 2-20

Thanks. I had not noticed 12.42(e) before. Learn something new every day!

A rewrite of the enhancement laws for state jail felonies this last session clarifies that state jail felonies that have not been enhanced to a higher punishment range are unavailable for use to enhance first, second or third degree felonies.

Hypo: in a pre sept 2011 case a dope dealer gets popped for more than 4 grams, less than 400 grams of coke.

1 enhancement is a regular old felony.

2nd enhancement was a state jail that was enhanced up to a 2nd. dope dealer went to the pen, not state jail.

Question: is the 2nd enhancement kosher?

It depends. Look at the old 12.42(e). That limited the use in 12.42 of SJF that were not first enhanced within 12.35. So, if your SJF went through 12.35(c), then you can use it under 12.42. If your SJF, however, went through 12.42(a)(2) on the way to 2nd degree, then it cannot be used further under 12.42.

The 2011 amendments were an attempt--in a heavy handed way--to further clarify that only 12.35(c) SJF may be used for enhancing regular felonies.