We have a case wherein a defendant was convicted of 3rd degree theft from one victim and was convicted of Class A theft from a separate victim.

In the 3rd degree case, the jury assessed prison with a recommendation for probation. In the misdemeanor case, the jury assessed only a fine and recommended that the fine not be suspended.

Does anyone know of any authority that would allow the judge to assess the restitution against the Class A victim as a condition of probation in the case for the 3rd degree theft, or would the judge have to assess the restitution in the Class A case by way of a lien.

I am familiar with the Ivey case from Austin (250 S.W.3d 121) in which the 3rd Court held that the judge could probate a sentence even though the jury did not recommend such a suspension, but that is the only thing I can come up with so far. (And I know that PDR has been granted in Ivey.)

Any help would be greatly appreciated. We have a hearing on this case early this week, so I am kind of in a rush for an answer.

I just noticed that CCP 42.22 does not allow restitution liens for misdemeanors. So the question now becomes: Can the trial court "roll" all of the restitution from the misdemeanor case into the felony probation case, even if there are two separate victims?

A judge can't use a one case to order the restitution owed from another case unless the defendant agrees to the condition as part of a plea bargain or fails to object when the condition is imposed. See The Perfect Plea, Chapter 4, Conditions of Supervision, Financial Payments, Restitution.

The key case on this issue is Martin v. State, 874 SW2d 674 (Tex. Crim. App. 1994).

I had read that section in The Perfect Plea, but I was hoping that there was another answer that was more favorable to our position. Thanks.