quote:Here is the scenario. Defendant pleas to 3rd degree (we thought). Judicial confession alleges SJF. Defendant sentenced to 3rd degree punishment. Appeals. Appellate attorney files Anders brief. COA looks at record and discovers above error. Returns to Trial Court. Now I have a letter stating appeal reinstated.
Who has jurisdiction?
If this looks familiar it was posted under another Subject line.
Question I have now is; does anyone have any case law on the facts as shown above?
I have Dinnery v. State, 592/343, against my position. Hoping someone has something to help state.
Posts: 956 | Location: Cherokee County, Rusk, Tx | Registered: July 11, 2001
I am not so sure that you have a 1.15 problem as much an issue that the State failed to "show" on the trial one of the facts required by 12.35(c). Whether those facts become elements of the offense or remain merely enhancement provisions or perhaps a defining attendant circumstance is an unknown. The answer, however, will likely determine whether your defendant is resentenced to a state jail range, is acquitted, or gets a new trial- at which you have a second opportunity to prove the 12.35(c) allegation.
