Today, the 3rd Court of Appeals concluded that a judge could probate a sentence imposed by a jury. To read the opinion, click here.

What the heck? Anyone want to take a stab at saying why that is wrong, wrong, wrong?

I wonder if the Court of Criminal Appeals will pick this one up on their own? Will we then have the situation where a defendant will be arguing (basically) that the trial court did not have the authority to NOT send him to jail? Even stranger, will the State take the position that the trial court has the inherent power to disregard a jury's verdict or that the jury's verdict is advisory??? What's next; dogs & cats living together?

[This message was edited by ed klein on 08-30-07 at .]

[This message was edited by ed klein on 08-30-07 at .]

I'm going to go out on a limb here and predict that the court of appeals will fix this on rehearing.

Defendant elected jury punishment. He should get it. Period.

The statutory authority for a judge to probate a sentence presumes that the defendant elected to have the judge handle punishment. Frankly, I'm baffled as to how 3 judges with the assistance of briefing attorneys could miss that connection.

The county attorney's office should have conceded error in the probating of the sentence. Does anyone know whether they did or not? And I still have my little brief on this issue which I've passed around on occasion if anyone wants to look at my research into why the judge cannot suspend the sentence of a jury which does not recommend it. Just let me know if you want it.

And how does such an opinion get designated a memorandum and do not publish? After all, is there any other opinion authorizing a judge to alter a jury's sentence in Texas? Was the panel hoping to slip by unnoticed?

Wait, the jury gave him 35 days jail time and a $2000 fine?

Plus this yahoo tells them he will drink and drive again. Plus he claims he was not impaired at .165.

Shouldn't this one be under the Thank you Texas Legislature thread?

A presumption of intoxication at twice the legal limit would be nice about now.

Something must be in the water at the Third Court of Appeals. Check out this case: click here.

Now, the court of appeals believes they have the authority to resentence a defendant after reading the mind of a trial judge. At best, the court of appeals should be vacating the sentence and remanding for resentencing.

What is going on?

quote:

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Originally posted by Gordon LeMaire:
A presumption of intoxication at twice the legal limit would be nice about now.

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Uh, a person is proven to be intoxicated when the evidence shows his BAC is over the legal limit, regardless of how much over. What advantage would such a presumption provide us when the jury is instructed to find him guilty if he drove while over the limit by any amount?

As for the second case, JB, while I agree that the defendant was not entitled to any credit, the judge apparently made it clear that he was sentencing him and granting credit for the time spent in prison on the separate count of the indictment. I can only conclude that the judge would have deducted the time from the sentence had he not given credit for it. Since the written order did not comport with the judge's oral pronouncement, I don't think the CCA was trying to read the judge's mind, I think they were trying to make sure the judgment said what the court pronounced. Ironically, the judge announced his intention in doing so was to "avoid litigation" on this very issue. Nice try, but no kewpie doll.

[This message was edited by Wes on 08-31-07 at .]

[This message was edited by Wes on 08-31-07 at .]

I do not think the court of appeals could know what the trial judge would have done on sentencing if he had been told that the defendant would not get credit against an adjudication for time served on a separate prison sentence. We can guess and speculate, but we really don't know. The trial judge is the one that should have been given the chance to resentence. I seriously doubt the trial judge would have assessed a sentence in a certain number of years and days.

A court of appeals has no authority to change a sentence. In this case it held that the trial judge improperly allowed the time served on count three as a credit under 42.03 against the sentence in court one. Arguably, the case should be remanded to see if the error makes any difference to the sentencing judge, but to me a credit error is immediately transformed into a calculation of when a person will be released. That is something which has nothing to do with the appropriate punishment (sentence), but rather is a matter for determination by parole authorities. I am not sure a credit calculation error is even a basis for re-determination of the sentence. The judgment in Hayward, 711 S.W.2d 652 was merely modified to remove the improper credit.

That would be our point, Martin. Defendant didn't ask to be resentenced. He got sentenced. He only asked for credit. The judge awarded "whatever credit the law allows." Well, that didn't include time he hadn't yet served.

So, I agree, the court of appeals should only have answered the question presented to them: no credit. If the sentence is somehow wrong, then the defendant should have made that argument, and the trial court should have been given an opportunity to announce whether it mattered.

We will seek a rehearing. Then perhaps a PDR.

Just for the sake of argument, what would be the proper position to take in this case:

The in-custody defendant has been awaiting a state jail felony trial for 18 months. He then pleads guilty without a plea bargain to the court. The trial judge states, on the record, "I wouldn't normally give you two years for this crime, but you have so much credit that I feel I must sentence you to two years with credit for 18 months, just to make sure you serve some time in the state jail." The judgment fails to reflect the credit, because it is learned after the sentencing that the defendant was on bond on this case, and was only in jail because of holds from another county, who has now dismissed their case. Defendant files a writ after six months in state jail, asking for the credit that the judge said he would get.

Is this a different case or same result?

Judge has no authority to award credit that has not been earned. As a matter of law, the defendant has no right to credit while released on bond (even if confined in jail on other charges). Defendant should have surrendered the bond and begun accruing credit.

Likewise, though, the judge's sentence is improper. First, the judge failed to sentence for the crime. He sentenced on the basis of an improper motive: to make sure defendant spends some time in state jail. Second, his statements make it clear that the sentence presumed the defendant would get credit.

Should be vacated and remanded for resentencing.

I guess the third COA is taking its lead from the CCA as far as reading the minds of a trial judge. Take a look at Masonheimer and ask the trial judge what he thought of the CCA changing his mind!!!!

Well, on rehearing, the court of appeals reaffirmed but one judge dissented. For the majority opinion, click here.

For the dissenting opinion by Judge Jan Patterson, click here.

Anyone want to place a bet on the likelihood of a PDR being granted? And, guess what, now the opinion is published. So it went from a memorandum to a published opinion. You gotta wonder.

[Is it unethical for a judge to change the sentence after talking to the jury? Isn't that the same as receiving information from an outside source? How would you feel about the jury doing punishment only after talking to the judge?]