We have a defendant who is charged with possession of more than 1 gram of cocaine in a drug free zone. ROP = 7-10 years + $20,000. 42.12, sec. 3, says that F3's under the Health & Safety Code have a maximum term of probation of five years.

State's offer is 10 years, probated for five, minimal fine. He's agreed. Judge is holding up the plea because the term of probation (5 years) is less than the minimum term of confinement (7 years).

Surely having the minimum term be more than the maximum is an absurd result that the legislature didn't intend, right? If he was enhanced from a F3 for two priors in sequence we wouldn't be forced to keep him on probation for 25 years, would we? Neither this argument, nor the argument that the specific portion of sec. 3 (that max term = 5 years) prevails over the general (minimum term = minimum term of incarceration) have prevailed. Nor has the fact that the defendant has agreed to the deal, been specifically advised of the issue, and specifically waived any future appellate or writ claims.

I do not see any case dealing with this (I can't believe it's been litigated, honestly). Short of an AG opinion, any thoughts?

Thanks.

You could always drop the DFZ finding that raises the minimum by 5yrs and just proceed as a straight 3rd-degree felony POCS 1<4g.

See Mayes v. State, 353 S.W.3d 790 (Tex. Crim. App. 2011) (minimum period of supervision not necessarily same as minimum period of confinement).

Yes - it CAN be less than the minimum sentence. I would NOT suggest dropping the DFZ because if you later revoke the probation, you have a much better sentencing range (7 year minimum) to bargain with. Dropping the DFZ opens up the possibility that defendant gets a 2 year sentence if revoked. Maybe a small possibility, but why take a chance?

What do you do with the language in Art. 42.12 Sce. 3 (b) that reads as follows:

"In a felony case the minimum period of community supervision is the same as the minimum term of imprisonment applicable to the offense..."

If the minimum term of imprisonment is 7 years then the minimum period of community supervision is 7 years.

I do not think that this offense is a third degree felony. It is not labelled as such in HSC 481.134. It should be regarded as having a special punishment range to harmonize the statutes.

So, drop the DFZ and avoid the issue. If you are giving probation anyway, can't be too worried about the sentence.

A good reason to keep the DFZ allegation is that the defendant would have to serve a lot more time in prison pursuant to Gov. Code Sec. 508.145. He would have to serve a minimum of 5 years or the term to which he was sentenced if less than 5 years if he is ever revoked.