Scenario: Defendant arrested at time of offense, and does not bond out. Defendant convicted at jury trial of class B misdemeanor, more than 8 months after arrest. Defendant did not seek probation (not eligible - prior felony conviction). Defendant elected to have Court assess punishment. SO - can the court suspend the sentence and place defendant on probation? Note: It appears likely that the defendant will not comply with any condition of probation, and will not care if revoked, since he has more time credit than the maximum sentence.

I spent some time looking at this this morning and can't come up with a decent answer. Even the question of not applying for probation doesn't help since that only controls in *jury* granted probation. Even The Perfect Plea has nothing to say on the matter that I can find.

But how about this? Can the judge grant probation, then order 30 days confinement as a term and condition of that probation, and then suspend the 30 days? Gah. I don't like that answer at all, but it's the only one that I can come up with. I'm so far outside the box I don't even see it any longer. But...

42.12 Sec. 12(c) allows the time served as a condition of probation to be imposed "at any time during the supervision period." I guess the judge could enter an order granting probation whereby the 30 days would be served at the END of the probationary period, and then if the defendant successfully completed it, MODIFY the terms to delete the requirement.

The idea makes my head hurt.

Brody - Thanks. I had looked at the perfect plea and didn't find an answer. I think the idea is that since the defendant has already served the maximum sentence, and has no intention of complying with any condition of supervision, I anticipate that a defendant in these circumstances is most likely to just leave town and never report - since the "remedy" would be to revoke probation, but in the event of a revocation, he would be released since he has already served the entire maximum sentence.

I figured that was the problem you were up against. Backloading the conditional time would allow you to hang some incentive over the defendant to comply- essentially the inverse of having to file a revocation. However, if he's done 8 months, then I'd imagine an additional 30 days wouldn't sweat him.