TDCAA    TDCAA Community  Hop To Forum Categories  Appellate    Abate Appeal?
Go
New
Find
Notify
Tools
Reply
  
Abate Appeal? Login/Join 
Member
posted
We have an issue on appeal that the judgment incorrectly states the state jail felony was enhanced to a first degree. The sentence is within the proper range of enhancement to a second degree. I would like to file a motion to correct judgment nunc pro tunc and abate appeal until that issue is resolved. Is that possible and do I need to request permission from the COA to file the nunc pro tunc request? Or can I just file it and file an abatement motion in the COA?
 
Posts: 419 | Location: Abilene, TX USA | Registered: December 16, 2002Reply With QuoteReport This Post
Member
posted Hide Post
If the trial court found the elements needed to bump it up to a 2nd degree, I think you could just ask the coa to reform it.
 
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001Reply With QuoteReport This Post
Member
posted Hide Post
While the correction you propose may not involve "a failure to render judgment and pronounce sentence", there may be an argument the trial court lacks jurisdiction to enter a nunc pro tunc since the defendant "has appealed". Tex.App.R. 23.1. But, assuming that rule does not apply, then I would simply file a motion in the trial court and then ask the appellate record to be supplemented with the amended judgment under Rule 34.5(c). If the appeal is scheduled to be submitted before you can get that done, then I guess you would need to ask for an abatement from the Court of Appeals (although the record can apparently be supplemented after submission as in Segal, No. 01-01-460-CV, fn. 4, but see Castaneda, 148 S.W.3d at 521). David's suggestion is also valid (but could involve some risk) and could be pursued even if the trial court were to refuse to correct its judgment.
 
Posts: 2391 | Registered: February 07, 2001Reply With QuoteReport This Post
Member
posted Hide Post
I have not filed my appellee brief yet so well before submission. My first thought was to ask the appellate court to reform the judgment, but after consulting with the trial attorney he thought I should file nunc pro tunc motion to correct judgment. I requested a hearing so the appellate attorney would be aware of the proceedings and planned to abate the appeal. However, the trial judge said no hearing was necessary and ruled on it, corrected the judgment and asked to supplement the record. I am not sure that the trial court had jurisdiction to do so but was told that since a nunc pro tunc order is not a jurisdictional matter that it could be entered at any time. We will see. Of course in my brief I will argue both that the appellate court accept the corrected judgment and if not order the trial court to correct the judgment on its own motion. Further, argue that even without a corrected judgment there was no harm because he was sentenced within the proper range. I had really thought I should have gone under RAP 44.4 but I guess it is too late now since the supp record is being processed to be presented to the COA now. Any other suggestions would be appreciated.
 
Posts: 419 | Location: Abilene, TX USA | Registered: December 16, 2002Reply With QuoteReport This Post
Member
posted Hide Post
Certainly it appears that where the judgment misstates the degree of the offense for which the defendant was found guilty, this is a matter which may be corrected nunc pro tunc, Mitchell, 942 S.W.2d at 174-5. And, of course, that type error may be corrected by the appellate court as well under Rule 43.2(b). Silva, 989 S.W.2d at 66. Looks to me as though you have all the bases covered.
 
Posts: 2391 | Registered: February 07, 2001Reply With QuoteReport This Post
  Powered by Social Strata  
 

TDCAA    TDCAA Community  Hop To Forum Categories  Appellate    Abate Appeal?

© TDCAA, 2001. All Rights Reserved.