Beginning September 1, judges must give certain state jail felons probation if they don't have a prior felony conviction. Included are POCS, POM (1lb. or less), Poss. LSD (5 abuse units or less) and (why?) Fraud (by prescription for schedule II and III drugs).

As we know, there are certain defendants for which it is a total waste of time to place on probation, even for such low-level drugs. For example, if a defendant is to be deported immediately after sentencing, what's the point? Or, if a defendant has previously been in treatment (e.g., for misdemeanor crimes or while on felony deferred adjudication), it may be a waste of taxpayer money.

For those cases, we have historically recommended a straight sentence. I'm looking for creative suggestions for accomplishing that sentence within the new law. Suggestions?

[This message was edited by John Bradley on 08-26-03 at .]

Although as a County Atty. I do not handle felony cases, our probation dept. has a work crew program where probationers are locked up in the county jail at night and released to a community service supervisor during the day to work on community service projects(picking up trash etc.)all the while wearing bright orange jumpsuits.
I know that on occassion the Dist Judge will require a term in the work crew as a term and condition of the original probation or, usually, as a sanction for some violation. If memory serves, the max time allowed in the crew is 180 days. Could you not order a def to probation and make that the major term of probation and at least get 6 months labor from them? In our program, no good time credit is given, the sanction is served day for day.
Idea may not be worth the time of day but we have had positive community feedback on the program.Then when they are released from custody they could still be on probation for a period of time with the possiblilty of incurring state jail time for subsequent violations.
Mike Hartman, Scurry County

[This message was edited by mhartman on 08-26-03 at .]

You don't really need creativity. Just put them on Intensive Supervision Probation (based on their PSI or priors) and have them report once a week, UA once a week, etc... I imagine that they will either survive 6 months, and earn a their place on the probation rolls, or you will again have the pleasure of their company at the Motion to Adjudicate.

But, not if they are deported.

What about using section 12.44(a) & (b) of the Penal Code? Can you give a defendant a direct sentence in the county jail for such a SJF?

What about alleging the POCS as POCS with intent to deliver? Wouldn't that take it out of the automatic probation?

What about pleading the POCS, POM and Poss. LSD as attempts (Class A misdemeanors)? Note that you probably can't do that with the Fraud case because, strangely, an attempted fraud is a completed fraud, by definition of the offense.

Any other thoughts?

I hope 12.44(a) will be available for these crimes. I like the idea of jail time on an attempt but I prefer to stick the D with a felony conviction at the same time. There are many times when probation is a waste of time and money, as John points out. I would also prefer to have our officers supervising the more serious cases such as sex offenders and the like and not devoting scarce resouces to monitoring these chickens#&t state jail felons. Putting them on ISP will get them revoked quicker, yes, but again we are taking officers from the more serious cases.

Don't forget that a judge can impose up to 180 days in the State Jail as a condition of this new "mandatory" probation requirement.

So in some cases, what about a 180 day term in the State Jail, probated for 2 years and a requirement for 180 days of up front time?

Or you could do 180 days of deferred adjudication and an up front 180 state jail term. Probation then ends at the same time the defendant is released.

Now I know that the authors of this bill wanted to keep offenders out of state jail at all cost and require drug treatment. But they they went and took away all of the treatment money.

Good luck to everybody.

The change in the wording of art. 42.12 sec. 15(a)(1) wrought by HB2668 now conflicts with sec. 3 (e)(2). Which section controls? As the later, more specific statute I presume it is 15 (a)(1), but should not we argue that the only jurisdiction the court has to suspend any sentence is granted in sec. 3?

What if the defendant elects to have his punishment assessed by the jury? Usually the court must impose the punishment exactly as recommended by the jury. See e.g., Chafin, 95 S.W.3d at 555. And, of course, the jury would never be given the option of recommending a suspended sentence due to sec. 4 (d)(2).

The jury has no authority to decide state jail felony probation. While a jury may set the punishment, insofar as it decides the confinement and fine, only a judge may decide probation for a state jail felony.

And, of course, section 15 controls over all other sections.

John, you are right that sec. 15 grants separate authority for state jail probation (which is different from sec. 3 probation) so my argument won't fly. Not sure what I was thinking, but was a bit too wishful in any event.

But, I take it you agree that if the defendant elected to have the jury assess punishment, the court might not be required to suspend to imposition of the sentence in accordance with sec. 15(a)(1)? That, of course, if true, is the very reason why the defendant would always choose to send the jury home after the guilt phase in any state jail trial. Or does the amended language now provide a defendant a reason to have the jury assess punishment (and, if so, should they be informed about the effect of HB2668?)

The jury is never asked about probation for a state jail felony. Only the judge decides. See page 63 of The Perfect Plea.

As to whether a jury gets to know that, I would think the prosecutor could alert the jury during voir dire (as to the range of punishment, etc.) and include something in the jury charge (e.g. The judge shall probate any confinement assessed by the jury; the judge has the discretion to probate any fine. The period of supervision is 2-5 years, as set by the judge.)