My guess is that in response to enactment of Chapter 708 of the Transportation Code we are indeed about to see the highest rate of disposition of pending DWI cases in a single month in history. My question is whether prosecutors should similarly be pushing for hearings upon all pending motions to adjudicate in cases that would fall within amended sec. 15(a)(1) of art. 42.12. It appears to me that if such hearings are delayed beyond August 31, then the defendant will be able to argue (even if his deferred adjudication is revoked) that the court must "suspend imposition of the sentence and place [him] on [regular] community supervision." This depends on how you interpret "any case in which a judgment has not been entered before" September 1 as stated in Sec. 4 of HB 2668, but I would think it safe to say the defense will argue the prior order deferring adjudication of guilt was not "a judgment". Get those motions filed and heard or be prepared to do the Texas two-step!
Anyone know what the "substance abuse treatment conditions" spoken of in new art. 42.12(c)(2) are, and who will be paying for them?
The purpose of the Legislation (creating automatic probation for state jail felony POCS) was to discourage the use of state jails as an immediate consequence of a POCS and to encourage the use of community supervision and treatment options. Included within that consideration was avoiding adjudications that result in a direct sentence.
The Legislature has made it clear that we should be making every effort to handle state jail felony drug cases (if there is no prior felony conviction) through community supervision and the available conditions (which are considerable).
And don't forget, you can adjudicate and put the person on a new state jail felony community supervision and add a condition of confinement in a county or state jail.
While all of this might seem awkward, I suggest that the payoff is considerable. The overriding purpose of the state jail system is to guarantee that there will be sufficient prison space to hold violent offenders for very long. For those prosecutors who did not begin their careers until after 1993, that might not seem like such a significant purpose. For prosecutors who watched violent criminals serve one month for each year of their sentence before achieving parole, it is a big deal.
John, I am not sure I understand. Are you saying that decisions such as May, 106 S.W.3d at 377 are not only correct as a matter of statutory interpretation but reflect a sound policy as well (i.e., everyone should have two bites at the probation apple before they are "really" punished for their offense)? What if all the treatment options were provided under the deferred adjudication order and we still failed to achieve the desired change in lifestyle? It just seems to me that we should take advantage of the existing law (before it changes) in appropriate cases.
It really doesn't matter what I think. I was merely reporting what the Legislature expressed through their law-making powers. I suppose we can criticize it, but it will be another two years before any change can result from that criticism.
Oops, in posing my question, I forgot about the last sentence of art. 42.12 sec. 5 (b) which provides that despite what new sec. 15 (a) says, the court "may order the sentence to be executed, regardless of whether the defendant has previously been convicted of a felony." I keep getting misled by cases such as May, which fail to take that provision into account. Cf. Kesinger, 34 S.W.3d 644. No need to worry about defense counsel's likely argument (unless, like the folks in Corpus, your judge forgets what the law actually is). I note, with sadness, that Jefferson County did not file either a motion for rehearing or a PDR in May.
