Friends,

I have a question and I would appreciate any input anyone can give on it. Here goes: Is there any way that a judgement imposing restitution can be severed from a judgement of conviction imposing confinement so that a defendant not challenging his conviction and sentence can be made to begin serving his sentence while the parties litigate the issues surrounding the imposition of restitution? Anyone know of any authority or other precedent for such an action?

Background: I have a case where the defendant's probation was revoked and he was sentenced to confinement for 2 years. The court also imposed restitution. The COA affirmed the judgment in its entirety. But now the CCA has granted PDR on a question related only to the award of restitution.

It does not feel like justice that this guy can still be out on an appeal bond. I want his judgement imposing confinement to be final.

On another note, I wonder what people think about appeal bonds being granted in appeals from revocations of community supervision where the appeal bond statute says: "pending the appeal from any felony conviction..." Not in "any appeal."

Kevin.

You are right that the remedy for violation of a limitation on restitution as set forth in Campbell, 5 S.W.3d at 699 will be a limited remand for reassessment of the amount. But, unfortunately, without a mandate, I do not see how you will get the defendant "checked in" to prison in the meantime. The appeal brought forward the whole case and the judgment is not final, even though the conviction and sentence have already effectively been affirmed. I have never seen an attempt to sever or split the cause of action. Your argument makes very good sense, but that is the only authority that I know of. But, your argument is not dissimilar to what occurred in Aguirre, No. 04-07-889-CR (San Antonio November 5, 2008), where the court abated a part of the case and sent the remainder (restitution issue) back to the trial court.

I guess you could argue that cases such as Jackson, 810 S.W.2d 3 have erroneously assumed the right to release on bond pending appeal from a revocation order, but I also think 44.04 has to be read in conjuction with 42.12 sec. 23(b). The finality and meaning of the initial "conviction" is inextricably tied to the revocation order (see e.g. Jordan, 36 S.W.3d at 877 (Price, et al concurring)) and thus the defendant can easily say he is appealing from his conviction. It makes sense to limit the right to bail under these circumstances (since revocation appeals have an even higher rate of affirmance than the ordinary criminal appeal), but I do not think your perceived limitation in 44.04 will accomplish that result. I know that some trial judges have been quicker to deny bail in revocation appeals from time to time. I do not know whether their decision was based on your argument. You get an A+ for thinking outside the box on both these issues.

[This message was edited by Martin Peterson on 03-01-09 at .]

Martin,

Thank you for your reply. And thanks for the case suggestions and especially for the reference to Aguirre. I am struggling a little with what to do now that the CCA granted review in my case. I am researching all of the angles. There seem to be pros and cons on each side. If I remember, I will post the end result.

I truely appreciate your insights. Thanks again,

Kevin.