Codefendants plead out in 2002 and 2003 on a possession of cocaine charge. Driver gets 3 TDC, the passenger gets 25 TDC as an habitual. Now the habitual/passenger is filing a writ claiming actual innocence and attaches an affidavit of the driver saying the passenger knew nothing about the dope. The kicker is that the driver signed a sworn stipulation of evidence at his plea saying he acted with the passenger as a party.

Here's the question: I plan on indicting the driver for aggravated perjury since his two statements are clearly incompatible. But, can I use the original conviction and 3 year sentence as an enhancement count? Normally, I would say yes, but I'm not sure when to consider the offense of agg. perjury to be committed. Did it happen with this new affidavit, or was it under way when he did the original stipulation, in which case, I wouldn't have the sequencing I need to enhance. For what it's worth, the passenger was clearly guilty. There was cocaine all over his side of the car and his seat from where he was dumping it out the window as they fled the police.

And yes, I will charge the writ writer passenger with Agg. Perjury when the time is right. There's another habitual count for him to ponder.

Agg perjury is committed when he signs the affidavit, using the two inconsistent statements manner and means. Effectively, the second statement is an element, and you can't have a crime without all the elements. Thus, you don't have a crime until the second statement is made.

Moreover, if alleged otherwise, you might not make limitations because perjury is under a 2 year SOL.

Because the date of offense is the second statement date, you can use the prior trip for enhancement, as long as his appeal (if any) was mandated prior to the affidavit.

Looks like he is in for a bumpy ride. Thanks for your point of view.

I would make it clear in the indictment that you are charging the affidavit (i.e. the second statement)is the false statement. I think the usual canned form-book version of perjury simply states that the def. made two sworn statements, which are incompatible. A verdict of Guilty to such an indictment would not settle for the appellant courts which statement was the perjury.

Terry, I don't think that is right. If you do the two statements manner and means, it doesn't matter which is true or which is false. That is good for the State. You still don't have a crime until the second statement is made, so that is good for SOL and enhancement. Your way makes it more difficult because you have to prove the second statement is in fact the false one. Right?

The crime is committed when one makes a false statement under oath, with intent to deceive. Thus, the crime took place either 1) when he made his 1st statement when he pled out, or 2) when he made the affidavit years later, denying the truth of his first statement at the plea hearing.

If his 1st statement was false, and his second statement true, then you cannot enhance him with the conviction he pled to when he pled out because he was not finally convicted of a felony when he committed that crime.

On the other hand, if that statement was true, and his second statement was false, then he committed the crime of agg. perjury after his conviction was final, and it would be available to enhance.

I don't think a Chambers County jury will have much problem figuring out which of the two statements is the true statement, and which is a lie. The fact that the State by law need not prove which statement is the lie, only that at least one of the statements is a lie, in this case doesn't make much difference.

Terry, if I go with the two statements, then I don't really have to put on proof of which is false (probably don't have to prove up the old drug offense at all). This might be better after the passage of time. The dope has been destroyed and the officer has gone on to greener pastures. It could be done, but would be easier to just show two completely incompatible statements. Might be better in the long run not to worry about enhancements and send the guy up for a new ten year sentence on the 3rd degree.

Our experience with these cases is that a jury will definitely convict, as they don't like the lying, but they aren't going to impose a massive amount of pen time. There is this sense that everyone knows convicts lie, so it isn't a big harm to the system when they do lie.

The nice thing about a pen sentence for the aggravated perjury, if the defendant is currently in prison, is that article 42.08, CCP, requires the sentence to be stacked. Requires. As in the judge has no discretion.

And that point is doubly sweet for the writ writer. Let's not forget he is habitual. 25 on 25.

Previously, I had such a writ filed. Defendant had a lawyer. So, I contacted the lawyer, showed him how the defendant's claim of innocence was objectively false and offered to forgo prosecution for aggravated perjury if he would withdraw the writ. Got it over the fax on the following Monday.



[This message was edited by John Bradley on 08-19-06 at .]

would this be considered an "UUuhhh... Nevermind Motion"?