A defendant pled to reckless inj to child--SJF. He was then revoked based upon a new injury to elderly offense. The plea agreement was that the new case was a SJF, defendant was admonished on SJF punishment, but the offense is actually a 3DF. What is the simplest way to fix this? Motion for New Trial?

Since we were all under the assumption at the time that the new case was SJF, if that's what the judgment said, even though the indictment alleges a 3DF, would the judgment be void for later use as enhancement if we did nothing--and would it be a 3DF or a SJF?

It would help to know what the plea agreement on the revocation was. Specifically, was the "new" offense used only as the basis for the revocation and maybe considered under section 12.45? Or did the defendant actually enter a plea of guilty to the new offense with punishment to run concurrently? (even though punishment on one would be in a state jail and on the other would be in a regular unit). If this is a case where the new case was just 12.45'd, I think the error is harmless since no punishment is being imposed on that case, and you could probably do a nunc pro tunc since the error is not substantive. Again, it would help to know a little more.

The MTR's sole violation was that he failed to turn himself in for weekends as a condition of probation. This was on the reckless injury to a child. He pled to 2 years probated for 2 years with county jail time, and then at the time of the revocation, he agreed to 9 months, concurrent with his new charge.

The injury to elderly (intentional bodily injury) was not listed in the MTR. He pled to 9 months on that one as well, and no paperwork mentions any lesser included agreement, only that we all proceeded as though it was a SJF.

So he benefits, basically and probably isn't going to argue, but I don't want it to be problematic in the future if some court wants to use this as an enhancement. I'm hopeful he'll grow up, but just in case he doesn't...