I have a misd. case that just came back on appeal. The mandate has been received and the judge scheduled the defendant to come in and be sentenced. 60 days to do, no probation. The defendant wants work release on the sentence or off hour sentence 42.033? CCP. The judge wants to know if he can sign the judgment but have the sentence to begin several months away so the judge can see the defendant's progress on his monthly reimbursement to the county on court appointed attorney fees. I assume the judge will honor the defendant's request on the off hour sentence if the defendant is paying the incurred costs.
If the judge can do this then what would stop a judge from having the sentence from starting several years away?
Whoa -- judge doesn't "sentence" the defendant at all after the mandate comes back. (if the defendant wasn't assessed his punishment before the appeal, there wouldn't be anything to appeal on the defense side). Only authority trial court has at this point is to enforce the mandate, which means he issues a capias and has defendant picked up, or in 99% of jurisdictions, tells the defense lawyer to send him in. But judge has no discretion over sentencing except discretion that he would have during pendency of any in-progress probationary period. There's some old (~15 years old) case law on the issue. If you're really stumped I'll help you find this. I know it's out there because I had to use it a few years ago to get a county commissioner picked up to do his sentence after the judge wanted to "set a hearing."
|Powered by Social Strata
© TDCAA, 2001. All Rights Reserved.