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Scenario--Visiting Judge took plea and placed on probation. Defendant violates probation--absconds Defendant arrested on MTAG Defendant now wants visiting judge to hear MTAG Is there any problem with elected hearing case. I don't know of any but defense attorney claims there is; however, he has failed to provide any caselaw. | ||
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You might look at the language in Article 42.12, Sec. 10(a). I've only seen it discussed in issues peripheral to yours. When you read it in context, the troublesome languages seems to apply only to shock cases. In my experience in two different counties, it is usually the elected judge who handles revos even if a visiting judge took the plea. | |||
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I think this would still apply, even though it is a MTAG rather than a revocation, because MTAG hearings are treated the same as MTRs elsewhere: Art. 42.12, Sec. 10(c) Any judge of a court having geographical jurisdiction where the defendant is residing or where a violation of the conditions of community supervision occurs may issue a warrant for his arrest, but the determination of action to be taken after arrest shall be only by the judge of the court having jurisdiction of the case at the time the action is taken. (emphasis mine) If your elected judge is the judge of the court having jurisdiction over the case, I think you're fine. I read the language that JohnR referred to the same way he does - as referring to shock. Art. 42.12, Sec. 10(a) states that only the judge who originally sentenced the defendant can suspend the sentence - which sounds like a suspension at a later time than the original sentencing; it does not say only the judge who placed the defendant on a suspended sentence can adjudicate/revoke that suspended sentence. | |||
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You don't have a choice of judge in criminal proceedings. You can have different judges preside at guilt and punishment in the same trial. Why would a MTR be any different? I had a defendant try to claim that he was entitled to have his adjudication hearing in front of the same judge that put him on deferred. It didn't fly. Mayo v. State, No. 05-05-01523-CR, 2006 WL 3086191. | |||
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"...but defense attorney claims there is; however, he has failed to provide any caselaw." What? That's outrageous! | |||
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My response to that would be: "Judge, if opposing counsel believes there is case law, he should provide it to you and to me. I am always glad to do the same." I can never find the case law the other side says there is--if there is a case, they need to bring it. That's why we have law books and Lexis/Westlaw. | |||
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