Defendant pled to 35 years in 93 on a robbery enhanced with 2 priors. In 2010, judge found 1 enhancement invalid and did a nunc pro tunc finding 1 ehancement not true but left 35 year sentence. Now defendant is appealling saying he should get a new punishment trial or the whole plea should be wiped out and the process started over. Any thoughts.
I presume the "appeal" is an application for relief under art. 11.07? I question whether a trial court has authority to modify a judgment nunc pro tunc to change a finding about a previous conviction. That sounds too much like "curing" a judicial error to me. Cf. Hancock, 212 S.W.3d 922.
Did the defendant file an actual appeal, a writ, a mandamus? There's no jurisdiction for appeal of a nunc. Everett v. State, 82 S.W.3d 735 (Waco 2002).
And I agree with Martin, this doesn't sound like a proper nunc.
Defendant had filed a writ and court sua sponte issued nunc. Now he is filing an appeal.
It does appear that the trial judge has made a mistake in trying to apply nunc pro tunc authority to the correction of a sentencing error. But I question BAR's use of such hostile language against the judge.
Blame can be assigned to the defense attorney, for failing to research the validity of the enhancement. Blame can be assigned to the prosecutor for the initial notice. Blame could even go to the defendant for failing to inform his lawyer. Still, all those mistakes could simply be trial errors that are subject to cure on direct appeal or through postconviction writ.
Nothing from this brief record suggests the trial judge has engaged in some sort of hostile, deliberately vindictive attack. The judge may simply have thought the nunc pro tunc was a proper vehicle for correcting the sentencing error.
This defendant is also likely still exposed to a 35-year sentence. And, while the proper solution may be to return the case for re-sentencing, the defendant might well be exposed to an even longer sentence should things turn more adversarial. Without knowing much about the facts, it is hard to say whether the defendant is smart to demand a new punishment hearing.
JB - Why be nice when the judge made so obvious and ridiculous error?
I can't say about what his original lawyer did 18 years ago or what the basis was for the writ challenging the bogus enhancement. But what the judge did NOW, there is no excuse for it. This is 2nd year law school stuff.
Either the judge didn't know the law or he chose to ignore the law - either way this is not the kind of judge whom we as the tax payers want. Thousands of tax dollars will now be spent litigating an issue that should have been resolved if only there was a competent judge hearing that case.
You remind me of a younger me.
Initial judge is long gone. Current judge is generaly a good state's judge, hence keeping the 35 year sentence. Don't know appellant history of initial enhancement but defendant states in one of his letters it was overturned on appeal so fault still lies at the beginning because if the case was on appeal, it was not a proper enhancement. Probably a defensive error. There is no reporter's record so the only information I can go on comes from the clerk's record. Appellant seems to imply that he wouldn't have taken the plea if 5 was his floor instead of 25. Relitigating the punishment should be fun.
Thanks for the update. Let us know how it concludes.
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