42.12 Sec.15 provides that in designated State jail cases, "on conviction" the judge shall suspend the sentence.

But Sec. 5(b) provides that when deferred adjudication is revoked in a state jail case, the judge "may suspend the imposition of sentence or may order the sentence to be executed."

My question: When deferred adjudication is revoked, the defendant is then "convicted." At that point, must the judge suspend sentence (giving the defendant a second probation" pursuant to Sec. 15; or can the judge impose a direct sentence to state jail under Sec. 5(b)?

Any help would be sincerely appreciated.

My understanding is that if Deferred is given on a state jail possession then upon violation, the case can roll to straight probation, but you can't adjudicate directly to state jail time.

Generally, I don't like giving a defendant deferred on a mandatory probation case because they get two bites at the probation apple.

If I remember correctly, the consensus was that Sec. 15 (specific to state jail probations) controls over Sec. 5 (general statute on deferreds). Thus, a defendant on a state jail deferred who gets adjudicated must then be placed on a straight probation under Section 15.

The result: fewer prosecutors and judges offer/approve of deferred adjudication in mandatory probation drug cases because they know the defendant can never be truly "revoked" on that deferred, no matter how badly he screws up or re-offends.

For more on the debate, see

here and here

(BTW, an exception to this rule occurs is those counties that offer the option of 12.44'ing the punishment to a Class A misdemeanor upon adjudication. While I find nothing improper with those sentences, I know that it has been the subject of some debate, and I don't think the debate was ever resolved by the courts -- after all, what crazy defendant is going to appeal a deal like that?)

[This message was edited by Shannon Edmonds on 05-24-06 at .]

[QUOTE]Originally posted by Shannon Edmonds:

(BTW, an exception to this rule occurs is those counties that offer the option of 12.44'ing the punishment to a Class A misdemeanor upon adjudication. While I find nothing improper with those sentences, I know that it has been the subject of some debate, and I don't think the debate was ever resolved by the courts -- after all, what crazy defendant is going to appeal a deal like that?)[Quote]

The only situation that I could see where this could become an issue would be in contesting the admissibility of that judgement/sentence as punishment evidence in a subsequent prosecution, with the claim that it was a void judgement.

Judge, I'm surprised you don't have a copy of TDCAA's The Perfect Plea. Page 137 answers your question.

You also can find the answer in Texas Sentencing, a book you used to use in teaching at the local university.

See you in Hawaii?

As to any of the county jail variants, (A) or (B), art. 42.12 �15 refers to prosecutions under PC 12.35(a), so if state jail incarceration is the ultimate sanction, you are stuck. But if county time will be the end result, you can just lock 'em up. Sometimes defendants prefer that, but if they do not have any convictions, I would rather at least try to give them treatment first.

Thanks to everyone who helped. John Bradley seems (as usual) to have the answer. For State Jail possession cases committed after Dec. 31, 1995, Deferred Adjudication can be revoked and the defendant then sentenced directly to state jail. No need for a second "suspended sentence" probation. That's allowed but not required.

I really do appreciate everyone helping me out. Thanks so very much. Judge Larry Gist

Judge, what you have just written and cited Mr. Bradley as saying goes against everything I thought I knew about these State Jail Possession cases. As far as I understand, we cannot send someone straight from Deferred to the State Jail for Possession if they do not have a prior felony conviction. I can't read Section 15(a)(1) any other way and I belive the good folks at TDCAA have advised me that this is the rule. Any other thoughts out there?

You can't go straight from SJF deferred adjudication to state jail time for every SJF offense. There are exceptions based on the offense and date of offense. Only way around it is to use county jail time under section 12.44(a), Penal Code.

Perhaps Judge Gist has an old or misprinted volume of TDCAA books.

[This message was edited by John Bradley on 06-08-06 at .]

John Bradley suggests that I misread or misunderstood. I went to the authoritive text ...Texas Sentencing, written by John. On page 169, he writes: "For a state jail felony committed after Dec. 31, 1995, a judge is no longer required to place a state jail defendant on a second community supervision following adjudication. (citing 42.12, Section 5) The judge has the discretion, as with any other offense, to adjudicate the defendant and impose a sentence, regardless of the defendant's criminal history."

Sounds clear enough to me. John apparently has a different conclusion today. I would love to know what changed his mind. He is such a scholar and we can all profit from his advice.

You gotta check the updates in the annual pocket part, as the Legislature has changed SJF more than a dancer changes her clothes at the Yellow Rose.

From the 2005 pocket part:

For a state jail felony committed after December 31, 1995, other than certain drug offenses, a judge has the discretion to adjudicate the defendant guilty and impose a sentence, regardless of the defendant�s criminal history, or place the defendant on postconviction community supervision.37 For certain drug possession and fraud offenses, if the adjudication and sentencing occurs after August 31, 2003, a judge must place the defendant on postconviction community supervision only if the defendant has not been previously convicted of a felony.38

For any state jail felony offense committed before January 1, 1996, if a state jail felony defendant on deferred adjudication supervision is adjudicated guilty and sentenced to confinement in state jail, the judge must place the defendant on postconviction supervision for two to five years, regardless of the defendant�s criminal history.38a

37 Tex. Code Crim. Pro. art. 42.12 � 5(b) (Vernon); Kesinger v. State, 34 S.W.3d 644 (Tex. App. San Antonio 2000).

38 TEX. CODE CRIM. PRO. art. 42.12 � 15(a)(1) (Vernon); Acts 2003, 78th Reg. Leg., ch. 1122, � 4; Holcomb v. State, 146 S.W.3d 723 (Tex. App. Austin 2004). The drug offenses are possession of a controlled substance, possession of LSD (5 abuse units or less), possession of marihuana (1 lb. or less), and fraud (by prescription for schedule II or III drugs)

38a Acts 1993, 73rd Leg., ch. 900 � 1.01 (adding Tex. Code Crim. Pro. art. 42.12 � 15(a) (Vernon).

Once again, John knows what he is talking about. I did, as I was taught in law school, read the pocket part to Texas Sentencing. But it was the 2004 edition. Our county got in a financial bind that year and decided to cancel most legal subscriptions.

I know better than to read the last but not latest pocket part. My transgression appears to be a state jail felony, so I'll give myself mandatory probation (deferred, of course) and move on!!!!! And if I do it again, then regular probation it shall be. Thank you Legislature for your strong stance on repeated criminal conduct.

Thank you John, so very much for keeping me and everyone else informed. I sincerely appreciate it.

You're such a great Judge and so helpful to ada's like me who call to discuss hypo applications of the law outside your jurisdiction that you should just give yourself "Super-Double-Secret Pre-trial diversion". You've earned it with your good karma!