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Situation: Def. pleds open to Mot.to Adjudicate. Judge prounces an 8 year TDC sentence and remands the Def. to the custody of the sheriff... etc. Def. makes it to the railing in the courtroom when the Judge says "wait, sorry, bring him back, I wrote down 10 years on the docket sheet and that's what I intended, so its 10 years TDC"
Def. appeals.

The Took 642 S.W.2d 514, Romero 712 S.W.2d 636 and other line of cases, make me think that the Def. wins- that a court can't resentence a Def. after the initial oral pronouncement of the sentence.

But McClinton 38 S.W.3d 747 out of the 14th Court of Appeals, and the opinions of Cochran, J. and Hervey, J. of the CCA when the CCA dismissed the petition in McClinton at 121 S.W.3d 768 make me think that there is a chance to make new law and allow judges to resentence a Def. or at least to correct a mispronouncement.

Thoughts? Is it a good thing that judges can't resentence/change a sentence since most of the cases involve State appeals where a Judge later went lower than the initial sentence?

Thanks
 
Posts: 11 | Registered: July 27, 2004Reply With QuoteReport This Post
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Your case seems close enough to me to say the judge merely corrected his oral pronouncement, rather than resentenced. What would be the real difference in the situation where no fine was initially pronounced and the judge came back a few seconds later and said, " oh wait, there will be a $X fine" or "I meant to say . . ." If the proceeding had truly ended and the judge had moved on to the next case, then maybe the outcome would be different. The key to these cases seems to me to be that the defendant is present and has an opportunity to understand the sentence (and make any objections). Furthermore, until he actually begins to serve the sentence, I would argue the court retains authority to modify its judgment.
 
Posts: 2391 | Registered: February 07, 2001Reply With QuoteReport This Post
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The thought expressed in the last sentence of my prior post seems not to make any difference to the appellate courts. After re-reading Dickerson, 864 S.W.2d at 863, (and looking at some of the other cases cited in Aguilera, 130 S.W.3d at 141-2,it appears the only issue is whether the Defendant has "accepted" the first sentence. But so far, the cases have dealt with a situation where someone pointed out the error to the trial judge. Maybe it makes a difference if the judge makes clear that he merely mispoke, without any prompting that he missed the enhancement or something similar. I would not give up in your case, even though the difference between 8 and 10 years is minimal.
 
Posts: 2391 | Registered: February 07, 2001Reply With QuoteReport This Post
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