I reviewed a previous thread from 2003 on the subject of probation eligibility for State Jail Felony offenses, but I still have questions.

JURY TRIAL:

As I understand it, if a defendant goes to a jury trial on guilt and punishment, or on the issue of punishment only (slow plea), the jury cannot give community supervision for a State Jail felony offense (42.12 Sec 4(d)(2)). Am I right?

If the jury cannot give probation and thereby sentences him to State Jail, then does the court have the discretion to give probation? And is the court required to give probation for those offenses listed under 42.12 Sec 15 (a)(1) which require probation, after a guilty verdict and State Jail sentence by the jury?


BENCH TRIAL:

If a defendant elects to go to trial on issue of guilt and/or punishment before a judge (bench trial), and the charge is not one of the mandetory community supervision offenses as specified in 42.12 Sec. 15 (a)(1), after a guilty finding, the judge has the discretion to award community supervision under 42.12 Sec. 15 (a)(2)? Am I right on this?
If the court has the discretion to give probation, then why does 42.12 Sec 3 (e)(2) seem to prohibit the judge from giving probation for state jail felony offenses. There seems to be a conflict between Sec 3 and Sec 15?

Finally, is any new legislation going to effect this scheme?

BENCH TRIAL
As( or, if ) I understand it, the provision in Section 3 of Art. 42.12 that seems to deny the judge the discretion to put a defendant on probation is limited by the phrase "under this section" in the first line of Art. 42.12, Sec.3(e).
The judge can't put the defendant on probation for a state jail felony under that section. Why? Because the state jail probation provisions are over in Section 15.

JURY TRIAL

The jury can't give probation on a state jail felony. Consequently, jury punishment on a state jail offense is so rare as to amount to a fluke. Where it happens, my understanding is that they give numbers for confinement and fine, and they're done. Then you look at Section 15 to find out what the judge must do and may do regarding the suspension of any sentence. {Could the judge probate the sentence after a jury state jail punishment verdict? I don't know)

My chart looks like this:


12.35 (a) Offenses

No waiver under 1.15 and No Election under 37.07 sec. 2(b) or Waiver under 1.15

Court must suspend imposition of sentence if conviction for offense named in sec. 15(a)(1) and no proof defendant previously convicted of a felony (but unclear whether judgment void if defendant plea bargains for a sentence of confinement)

OR

Court may suspend imposition of sentence for any other SJF offense


No waiver under 1.15, Election under 37.07 sec. 2(b)

42.12 sec. 4(d)(2) prohibits community supervision being submitted to the jury Rhodes, 997 S.W.2d at 695; and arguably the court must assess punishment in accordance with jury punishment verdict. 42.01 sec. 1 and Nelson, 149 S.W.3d at 212-3; but see Hobyl, 152 S.W.3d 624; Unclear whether this applies to offenses within scope of 42.12 sec. 15(a)(1), but I would argue the court has no authority under either 15(a)(2) or 3(e)(2) of 42.12 to alter the punishment assessed by the jury. Note: sec. 4 is amended effective 9-01-05 to provide jury may recommend community supervision. HB1759 79th Leg. R.S.

[This message was edited by Martin Peterson on 07-19-05 at .]

Okay--just wanted to check--every time I think I have a grip on this I find out something has changed.

I am picking a jury in a SJF PCS, PG1, < 1 gram case. The Defendant has not filed a punishment election. The Defendant has no prior convictions.

If he goes to the jury for punishment--is the status of the law that the jury cannot recommend probation and that he receives TDCJ-SJ time? Further, can the Judge come in behind the jury's verdict of 6 or 12 months state jail time and impose community supervision?

I understand (or at least hope that I understand) that it is a mandatory probation case if he goes to the judge for punishment.

If your def does not have a prior felony conviction, then the Court must place him on probation, regardless of who assesses the term of confinement. Should the def elect to have the jury assess punishment, then the only issue would be how many months of confinement. The judge would then have to suspend the sentence. Sort of a trifurcated trial ...

quote:

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Originally posted by Cory Crenshaw:
If your def does not have a prior felony conviction, then the Court must place him on probation, regardless of who assesses the term of confinement.

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I don't think that's right. 42.12, sec. 4(d)(2) says a defendant is not eligible for probation is he is convicted of an offense for which suspension of the sentence is automatic under sec. 15(a). It looks to me like the legislature intended specifically to make sure that juries could not recommend probation in such a case. And if the jury doesn't recommend it, the judge cannot grant it.

Maybe someone with better access to the legislative history can explain why the opposite reading is better, but that's the way it looks to me.

The law previously was that a jury could not recommend probation if the defendant was "sentenced to serve a term of confinement under Sec. 12.35 Panal Code (State Jail Felony)". See Art. 42.12 CCP, Section 4(d)(2).

However, that language was eliminated and changed to now read that a jury can not recommend probation if the defendant "is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under section 15(a)"

Looks to me like a jury can grant probation in any other state jail case in which probation is not mandatoary under Sec. 15(a) of Art. 42.12 CCP.

Doesn't the def still have the right to have the jury assess his confinement length? My understanding is that the Leg didn't want the jury to decide the issue of probation simply because probation is mandatory. There is no need for the jury to make a recommendation; they only need to assess the length of confinement and the fine, if any. Then the judge must suspend the sentence under 15(a).

Judge Gist, you are right about all other SJF cases where the jury must decide if it will "grant" probation. Again, the jury need not make this decision to "grant" probation if it is mandatory.

Please tell me I am right because I have tried at least 3 or 4 cases this way.

quote:

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If your def [on trial for offense described in art. 42.12 sec. 15(a)] does not have a prior conviction, then the Court must place him on probation, regardless of who assesses the term of confinement.

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This is correct, in my opinion. Furthermore, the defendant still has the right to have the jury determine his sentence (just not whether it is imposed).

Another state jail crisis averted.

I posted the original question back in 2003. This thread seemed to revive the issue, but I still don't have an answer. I am at this moment (literally typing as the Judge is doing his voir dire) picking a jury on a Burglary of a Building for a 17 year old defendant with no criminal history.

We are all scratching our heads over the proper procedure to have the possibility of probation for the Defendant. Do you elect Jury assess punishment and ask the Judge to suspend or not? Or, do you elect the Judge assess punishment and let the Defendant ask him/her for probatition?

It seems that this is being handled by local practice. You ask the Judge how he interprets the various statutes and then do whatever he/she says. The legislature needs to clean this up so we don't have be speculating.

Try looking at pages 80-81 of The Perfect Plea. The laws regulating probation for SJF cases has changed nearly every session since its creation in 1994.

For current SJF crimes (other than the automatic probation for certain drug crimes), the defendant can simply elect punishment from judge or jury.