The facts in Argent make the decision interesting. Argent. Argent's attorney supposedly misled him into thinking an offer of eight years pen time was not good enough because he might be able to convince the judge to assess 10 years or less and suspend the sentence under 42.12, sec. 3. In fact, since the offense was excluded from section 3 by section 3g, the only hope of avoiding prison lay under sec. 5 of 42.12. The CCA seems to be implying that maybe a judge would reject community supervision for a first-degree felony offense under sec. 5, but grant it under sec. 3 (if the law allowed).

My thought is that many judges would actually prefer to defer adjudication rather then grant regular probation in this situation, especially since a greater sentence than 8 (or 10) years can be assessed upon adjudication. Plus, the possibility of getting the charge dismissed may be perceived as providing a greater incentive for the probationer to successfully complete probation (since a dismissal under sec. 20(a) is not as good as one under section 5, at least in the sense that "a dismissal and discharge under [section 5] may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense."). Plus, I assume the accused would normally rather seek a deferral of proceedings rather than a finding guilt. So, why is the court even hinting that encouraging a false hope-in securing a less desirable and less likely alternative-would be prejudicial advice.

In your experience, do you think judges tend to chose sec. 3 probation over sec. 5 probation for first and second degree felonies and, if so, why? I am glad the court adopted the correct (federal) standard for assessing harm, but am perplexed by the suggestion the trial judge can find Argent would have accepted the state's offer if his attorney had not instilled a scenario that was even less likely and perhaps less palatable than the option actually available (deferred adjudication). I guess my real complaint lies in the speculation that Frye invites.

This message has been edited. Last edited by: Martin Peterson,