Do the two priors have to be consecutively disposed of in order to use them both to enhance a subsequent felony to 2-20 years punishment?

I have two forgeries from 1998 that were pled guilty on the same day. Both probations were subsequently revoked on the same day.

New slew of crimes now - 15 or so thefts and forgeries. (He got another check book.)

With two prior SJF's, can each of these be enhanced to a second degree punishment range or am I barred from doing that enhancement because the two priors were disposed on the same date?

The offense is enhanced to a third degree range of punishment under 12.42(a)(1). That statute does not require any sequence in the prior convictions. Prior state jail convictions cannot be used for purposes of enhancement under 12.42(a)(2). Campbell, 49 S.W.3d 874.

Philip, note that there is a case out there dealing with enhancements, the cite and name of which escape me right now, that discusses the difference between felony convictions and state jail felony convictions. The two terms are not interchangeable. Thus, state jail felony convictions do not qualify as "felony" convictions under 12.42(a)(2).

Thank you.

So to be clear,

on a 12.35(a) straight SJF:
two prior SJF's = 3rd degree punishment.
two prior non-SJF's that are sequential = 2nd degree punishment

with a 12.35(c)SJF or a 3rd degree felony, one prior felony, EVEN a 12.35(a) SJF, = 2nd degree punishment. (12.42(e) does not exempt 12.35(a)SJF's from use for enhancement purposes under 12.42 (a)(3))

IS that correct?

Not that it fits your set of facts, but the words state jail and enhancements caught my attention: When I used to be a writer for The Prosecutor, we did an article on a case the S.P.U. tried and successfully brought through the Beaumont Court. It boiled down to the fact that punishment for the D's state jail felony was enhanced to 2nd degree provisions, AND the prior convictions used to enhance him were all concurrent counts in the same (original) indictment. So, the enhancement from state jail felony to 2nd degree felony was accomplished with 2 prior concurrent felony convictions, where one of those was a 3g offense.

Exit only
Gowan v. State 18 SW3d 305 (Tex. App. -- Beaumont 2000, pet ref'd.)

Or try the chart on page 36 of The Perfect Plea.

Thanks John B. Makes sense. Handy little book you've written there.

Thanks for the Gowan case, AP.

Page 35 speaks clearly that a sentence resulting in suspension/community supervision is not yet ripe to be used for an enhancement. However, once that suspension is revoked and the defendant sent to incarceration, the sentence becomes ripe. What is not clear is which date, the original sentencing or the revocation hearing, should be used in the enhancement paragraph of the indictment.

I believe it is the revocation date; is that correct?

(Yes, re-reading the Perfect Plea is on my 'things to do this weekend' list. You should put these suckers on CD so I can listen to them in my car.)

[This message was edited by Philip D Ray on 02-07-05 at .]

[This message was edited by Philip D Ray on 02-07-05 at .]