On December 30, 2004, defendant was senteced to four stacked state jail terms for cattle theft. Sixteen other charges were dismissed as a result of the plea. Defendant was sent to state jail but later moved to a medical unit in the institutional division because of his diabetes.
Defendant is a year into his second sentence. He filed for shock probation and after a hearing, the judge granted shock probation, stating that defendant's confinement in the institutional division was illegal. Rather than undo the plea, the court has released him on five years community supervision.
I understand that the judge can grant shock probation on a state jail sentence after 75 days of the sentence have been served under 42.12 Section 15(f)(2) for any reason. I am, however, planning to appeal her modification of the defendant's sentence. He has two sentences that have yet to commence and my position is that the judge has no authority to shock the defendant on those cases until he has been in state jail for 75 days.
Has anyone ever run across a situation like this before? Does anyone have an example of a state's appeal for a court modifying a judgment? I am in a solo shop and would appreciate any help/advice. You can email me at sheatly@co.wilbarger.tx.us.
Did the judge do the original sentencing (not the jury)? If not, then you also could argue that he illegally altered a jury punishment.
As for the shock probation, you are quite correct that he can't change the stacking order. And that would prevent him from probating a sentence that hasn't yet begun.
There is also a separate law that says you can't follow up a probation with confinement. This judge has made quite a mess of his sentences.
Perhaps a writ of mandamus would work if direct appeal is not possible.
Thanks for the response JB. The sentences were the result of a plea taken by a visiting judge. The DA at that time is now the judge so another visiting judge heard the application for shock and granted it.
Wait! Did I understand you correctly--the judge thinks its an illegal sentence if TDCJ transfers a sick inmate from State Jail to a medical unit in the I.D.? In other words, if you commit a state jail crime, and you are too sick to keep in the S.J., then you can't be incarcerated? Which means that being "on probation" in such a case, is really a misnoumer, since you can not be revoked.
Did I get that right?
Because if I did, you have much bigger problems with that judge than this single case. You see, JSH, what you have is a judge who is traveling in a different dimension in time and space. You have a judge who is in--The Twightlight Zone.
