I have a guy who is coming up for his third Motion to Revoke hearing. About a year ago, we filed a motion alleging some new offenses but we decided to withdraw the motion without a hearing and amend his probation to give him 30 days in county jail. Now he is back with us (suprise suprise) and I want to be able to prove up the older offenses even though they appeared in an old motion to revoke that we withdrew. Everyone seems to say that I can do it, but I am worried my judge is going to not look to kindly on me doing this unless I have some good caselaw saying this is allowed. Can anyone help point me in the right direction? Thanks for the assistance.


Steve L.
ADA
Hopkins County

If you resolved the prior mrp with a modification, I believe the law says you cannot use that again as the grounds for an mrp.

I do think, however, that you can use the prior violations during the punishment phase tho...

But if you withdrew the MRP, then you never used the allegations and there should be no "double jeopardy" type argument. We have done the same thing countless times. We dismiss the MRP without prejudice and then can use the allegations later if we refile.

I, of course, agree with you Dan. The other side has hired two lawyers for an MTR and I need to have some caselaw if there is any out there otherwise the judge is probably going to side with them after a long hearing with around 10 to 15 witnesses. Thanks again.


Steve L.

I'm not sure you are going to find a case on point on the issue, since the hallmark of an MRP is Due Process, no more, no less. There are plenty of cases that cite that due process is what is required. Having said that, the logical argument is that since nothing was formally presented to the court previously in the way of violations, the State should be able to present them now.

A court can always alter the conditions of probation and even impose new ones without the State's involvement, so long as they are reasonable conditions that relate to the probationer's rehabilitation. Therefore, the court would not have to have relied on any prior violation in changing the conditions previously, especially if the State withdrew or dismissed the prior MRP without prejudice. Of significant note is that if you actually said "without prejudice", you were clearly retaining the right to move forward on the allegations at a later date. Even if you didn't use the magic language, the allegations were never actually presented to the court for consideration. (Surely the court is not going to say that it considered the allegations and passed on their merit in the absence of an adversarial hearing.) Thus, they have never been judicially reviewed, and would still be available for current consideration.


Just my rambling thoughts.

[This message was edited by Dan Bradley on 08-25-08 at .]

I believe you can use the prior violations as long as the defendant did not previously enter a plea to them and the court did not make findings on them. For authority, look at Bigham v. State, 233 S.W.3d 118 (Tex.App.--Texarkana, 2007).

Nash v. State (817 SW 2d 837)
Lam v. State (WL 21509043 - not published)
Lara v. State (WL 1902568 - not published)