It is unclear by the statute and what case law I could find whether a judge can actually classify a charge as a misdemeanor if there is no lesser included offense to the offense originally charged. As an example under H&S 481.115 D possesses less than one gram of cocaine, but there are no lesser included offenses. As opposed to 481.117 where there is a lesser included offense of possession which would be a Class A misdemeanor. How do you create a misdemeanor offense so that the conviction can be classified as a misdemeanor? The statute seems to say that you have to have a lesser included misdemeanor with which to charge the D before you can actually utilize 12.44(b).

An attempted offense moves down the punishment range by one level. So, an attempted SJF possession would be a Class A misdemeanor. For more on this issue, go to p. 27 of The Perfect Plea (coming to you this summer in a new edition).

As to PC sec. 12.44(b), you don't have to have a misdemeanor version of the offense available. Any SJF can be converted to a misdemeanor by proceeding under sec. 12.44(b). You simply need to make sure the judgment reflects a conviction for a misdemeanor under sec. 12.44(b) rather than as a felony punished under a misdemeanor punishment range (see sec. 12.44(a)). For information, see p. 40 of The Perfect Plea.

Does 12.44(b) make a state jail felony a misdemeanor offense just by stating the conviction is a misdemeanor. The statute says that a judge may authorize the prosecutor to prosecute initially for the lesser category of offense. How do you prosecute intitially for a lesser category of offense if the offense is possession of cocaine and the lesser category within that statute is not a misdemeanor. It just seems unclear how you can charge an offense under 481.115(a) and call it a misdemeanor. How does the modifier "initially prosecute" fit within this scenario? An attempt just doesn't seem to work for a possession case.

It is so simply because the Legislature says it may be so.

The "category" refers to the punishment range. The offense stays the same. So, if the prosecutor wishes and the judge approves, then we may proceed to prosecute a SJF offense as if it were a misdemeanor offense.

It is not ours to question the wisdom. We are mere servants in the Lord's work. Amen.

While we're on the subject of 12.44, I constantly have defense lawyers come and ask for a reduction under 12.44(a) and then ask for a misdemeanor deferred. I'm of the opinion that the words "conviction" and "confinement" in the statute don't contemplate or authorize a misdemeanor deferred, but I still have people that want to argue about it. What do y'all think?