Full question:
Hello, my father received a 7 yr sentence on a second degree drug felony in 1994. He was given 10 yrs straight probation instead. A few months later he got hooked on drugs himself and violated with 2 new charges. last year 15 years later he went to turn his self in on the new charges, but they had been dropped, so all he faced was the violation. He hired someone to look into the case, I believe a lawyer bail bondsman, and the judge set the bail at $1500. He just made the bond. Some people tell us that he cannot be put back on probation because his discharge for probation has elapsed as well as his prison release date. I was told that the Judge can give him the original 7 years or as little as 2 years. Can you please tell me the judges options in my fathers case, I mean can he get reinstated or what are his chances. Thank you.
- Category: Criminal
- Subcategory: Sentences
- Date:
- State: Florida
Answer:
Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed. During the period of probation, the probationer must perform the terms and conditions of his or her probation. Defendants found guilty of felonies who are placed on probation shall be under supervision not to exceed 2 years unless otherwise specified by the court.
A probation violation may result in probation being revoked. When the court imposes a subsequent term of supervision following a revocation of probation or community control, it may not provide credit for time served while on probation or community control toward any subsequent term of probation or community control. However, the court may not impose a subsequent term of probation or community control which, when combined with any amount of time served on preceding terms of probation or community control for offenses before the court for sentencing, would exceed the maximum penalty allowable for by law. No part of the time that the defendant is on probation or in community control may be considered as any part of the time that he or she shall be sentenced to serve.
The answer will depend on all the facts involved. Generally, a probation violation may be charged even if the original term of probation or sentence has elapsed. I suggest you consult a local attorney or public defender who can review all the facts and documents in the case.
Please see the following FL statutes to determine applicability:
948.04 Period of probation; duty of probationer; early termination. —
(1) Defendants found guilty of felonies who are placed on probation shall
be under supervision not to exceed 2 years unless otherwise specified by
the court. No defendant placed on probation pursuant to s. 948.012(1) or s.
948.034 is subject to the probation limitations of this subsection. A
defendant who is placed on probation or community control for a violation
of chapter 794 or chapter 827 is subject to the maximum level of
supervision provided by the supervising agency, and that supervision shall
continue through the full term of the court-imposed probation or community
control.
(2) Upon the termination of the period of probation, the probationer
shall be released from probation and is not liable to sentence for the
offense for which probation was allowed. During the period of probation,
the probationer shall perform the terms and conditions of his or her
probation.
(3) If the probationer has performed satisfactorily, has not been found
in violation of any terms or conditions of supervision, and has met all
financial sanctions imposed by the court, including, but not limited to,
fines, court costs, and restitution, the Department of Corrections may
recommend early termination of probation to the court at any time before
the scheduled termination date.
948.03 Terms and conditions of probation.—
(2) The enumeration of specific kinds of terms and conditions shall
not prevent the court from adding thereto such other or others as it
considers proper. However, the sentencing court may only impose a
condition of supervision allowing an offender convicted of s. 794.011,
s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145, to reside in
another state, if the order stipulates that it is contingent upon the
approval of the receiving state interstate compact authority. The court
may rescind or modify at any time the terms and conditions theretofore
imposed by it upon the probationer. However, if the court withholds
adjudication of guilt or imposes a period of incarceration as a condition
of probation, the period shall not exceed 364 days, and incarceration
shall be restricted to either a county facility, a probation and
restitution center under the jurisdiction of the Department of
Corrections, a probation program drug punishment phase I secure
residential treatment institution, or a community residential facility
owned or operated by any entity providing such services.
Section 29. Paragraph (c) of subsection (8) of section 948.06, Florida
Statutes, is amended to read:
948.06 Violation of probation or community control; revocation;
modification; continuance; failure to pay restitution or cost of
supervision.—
(8)
(c) For purposes of this section, the term "qualifying offense" means
any of the following:
1. Kidnapping or attempted kidnapping under s. 787.01, false
imprisonment of a child under the age of 13 under s. 787.02(3), or luring
or enticing a child under s. 787.025(2)(b) or (c).
2. Murder or attempted murder under s. 782.04, attempted felony murder
under s. 782.051, or manslaughter under s. 782.07.
3. Aggravated battery or attempted aggravated battery under s. 784.045.
4. Sexual battery or attempted sexual battery under s. 794.011(2), (3),
(4), or (8)(b) or (c).
5. Lewd or lascivious battery or attempted lewd or lascivious battery
under s. 800.04(4), lewd or lascivious molestation under s. 800.04(5)(b) or
(c)2., lewd or lascivious conduct under s. 800.04(6)(b), or lewd or
lascivious exhibition under s. 800.04(7)(b), or lewd or lascivious
exhibition on computer under s. 847.0135(5)(b)s. 800.04(7)(c).
6. Robbery or attempted robbery under s. 812.13, carjacking or
attempted carjacking under s. 812.133, or home invasion robbery or
attempted home invasion robbery under s. 812.135.
7. Lewd or lascivious offense upon or in the presence of an elderly or
disabled person or attempted lewd or lascivious offense upon or in the
presence of an elderly or disabled person under s. 825.1025.
8. Sexual performance by a child or attempted sexual performance by a
child under s. 827.071.
9. Computer pornography under s. 847.0135(2) or (3), transmission of
child pornography under s. 847.0137, or selling or buying of minors under
s. 847.0145.
10. Poisoning food or water under s. 859.01.
11. Abuse of a dead human body under s. 872.06.
12. Any burglary offense or attempted burglary offense that is either a
first degree felony or second degree felony under s. 810.02(2) or (3).
13. Arson or attempted arson under s. 806.01(1).
14. Aggravated assault under s. 784.021.
15. Aggravated stalking under s. 784.048(3), (4), (5), or (7).
16. Aircraft piracy under s. 860.16.
17. Unlawful throwing, placing, or discharging of a destructive
device or bomb under s. 790.161(2), (3), or (4).
18. Treason under s. 876.32.
19. Any offense committed in another jurisdiction which would be an
offense listed in this paragraph if that offense had been committed in this
state.
948.06 Violation of probation or community control; revocation;
modification; continuance; failure to pay restitution or cost of
supervision.
(1)(a) Whenever within the period of probation or community control there
are reasonable grounds to believe that a probationer or offender in
community control has violated his or her probation or community control in
a material respect, any law enforcement officer who is aware of the
probationary or community control status of the probationer or offender in
community control or any parole or probation supervisor may arrest or
request any county or municipal law enforcement officer to arrest such
probationer or offender without warrant wherever found and return him or
her to the court granting such probation or community control.
(b) Any committing trial court judge may issue a warrant, upon the facts
being made known to him or her by affidavit of one having knowledge of such
facts, for the arrest of the probationer or offender, returnable forthwith
before the court granting such probation or community control. In lieu of
issuing a warrant for arrest, the committing trial court judge may issue a
notice to appear if the probationer or offender in community control has
never been convicted of committing, and is not currently alleged to have
committed, a qualifying offense as defined in this section.
(c) Any parole or probation supervisor, any officer authorized to serve
criminal process, or any peace officer of this state is authorized to serve
and execute such warrant. Any parole or probation supervisor is authorized
to serve such notice to appear.
(d) Upon the filing of an affidavit alleging a violation of probation or
community control and following issuance of a warrant under s. 901.02, a
warrantless arrest under this section, or a notice to appear under this
section, the probationary period is tolled until the court enters a ruling
on the violation. Notwithstanding the tolling of probation, the court shall
retain jurisdiction over the offender for any violation of the conditions
of probation or community control that is alleged to have occurred during
the tolling period. The probation officer is permitted to continue to
supervise any offender who remains available to the officer for supervision
until the supervision expires pursuant to the order of probation or
community control or until the court revokes or terminates the probation or
community control, whichever comes first.
(e) The chief judge of each judicial circuit may direct the department
to use a notification letter of a technical violation in appropriate
cases in lieu of a violation report, affidavit, and warrant when the
alleged violation is not a new felony or misdemeanor offense. Such
direction must be in writing and must specify the types of specific
violations which are to be reported by a notification letter of a
technical violation, any exceptions to those violations, and the required
process for submission. At the direction of the chief judge, the
department shall send the notification letter of a technical violation to
the court.
(f) The court may allow the department to file an affidavit, notification
letter, violation report, or other report under this section by facsimile
or electronic submission.
(2)
(i)1. Notwithstanding s. 921.0024 and effective for offenses committed
on or after July 1, 2009, the court may order the defendant to successfully
complete a postadjudicatory treatment-based drug court program if:
a. The court finds or the offender admits that the offender has
violated his or her community control or probation and the violation was
due only to a failed or suspect substance abuse test;
b. The offender's Criminal Punishment Code scoresheet total sentence
points under s. 921.0024 are 52 points or fewer after including points for
the violation;
c. The underlying offense is a nonviolent felony. As used in this
subsection, the term "nonviolent felony" means a third degree felony
violation under chapter 810 or any other felony offense that is not a
forcible felony as defined in s. 776.08;
d. The court determines that the offender is amenable to the services
of a postadjudicatory treatment-based drug court program;
e. The court has explained the purpose of the program to the offender
and the offender has agreed to participate; and
f. The offender is otherwise qualified to participate in the program
under the provisions of s. 397.334(3).
2. After the court orders the modification of community control or
probation, the original sentencing court shall relinquish jurisdiction of
the offender's case to the postadjudicatory treatment-based drug court
program until the offender is no longer active in the program, the case is
returned to the sentencing court due to the offender's termination from
the program for failure to comply with the terms thereof, or the
offender's sentence is completed.
(3) When the court imposes a subsequent term of supervision following a
revocation of probation or community control, it shall not provide credit
for time served while on probation or community control toward any
subsequent term of probation or community control. However, the court may
not impose a subsequent term of probation or community control which, when
combined with any amount of time served on preceding terms of probation or
community control for offenses before the court for sentencing, would
exceed the maximum penalty allowable as provided by s. 775.082. No part of
the time that the defendant is on probation or in community control shall
be considered as any part of the time that he or she shall be sentenced to
serve.
(4) Notwithstanding any other provision of this section, a felony
probationer or an offender in community control who is arrested for
violating his or her probation or community control in a material respect
may be taken before the court in the county or circuit in which the
probationer or offender was arrested. That court shall advise him or her of
the charge of a violation and, if such charge is admitted, shall cause him
or her to be brought before the court that granted the probation or
community control. If the violation is not admitted by the probationer or
offender, the court may commit him or her or release him or her with or
without bail to await further hearing. However, if the probationer or
offender is under supervision for any criminal offense proscribed in
chapter 794, s. 800.04(4), (5), (6), s. 827.071, or s. 847.0145, or is a
registered sexual predator or a registered sexual offender, or is under
supervision for a criminal offense for which he or she would meet the
registration criteria in s. 775.21, s. 943.0435, or s. 944.607 but for the
effective date of those sections, the court must make a finding that the
probationer or offender is not a danger to the public prior to release with
or without bail. In determining the danger posed by the offender's or
probationer's release, the court may consider the nature and circumstances
of the violation and any new offenses charged; the offender's or
probationer's past and present conduct, including convictions of crimes;
any record of arrests without conviction for crimes involving violence or
sexual crimes; any other evidence of allegations of unlawful sexual conduct
or the use of violence by the offender or probationer; the offender's or
probationer's family ties, length of residence in the community, employment
history, and mental condition; his or her history and conduct during the
probation or community control supervision from which the violation arises
and any other previous supervisions, including disciplinary records of
previous incarcerations; the likelihood that the offender or probationer
will engage again in a criminal course of conduct; the weight of the
evidence against the offender or probationer; and any other facts the court
considers relevant. The court, as soon as is practicable, shall give the
probationer or offender an opportunity to be fully heard on his or her
behalf in person or by counsel. After the hearing, the court shall make
findings of fact and forward the findings to the court that granted the
probation or community control and to the probationer or offender or his or
her attorney. The findings of fact by the hearing court are binding on the
court that granted the probation or community control. Upon the probationer
or offender being brought before it, the court that granted the probation
or community control may revoke, modify, or continue the probation or
community control or may place the probationer into community control as
provided in this section. However, the probationer or offender shall not be
released and shall not be admitted to bail, but shall be brought before the
court that granted the probation or community control if any violation of
felony probation or community control other than a failure to pay costs or
fines or make restitution payments is alleged to have been committed by:
(a) A violent felony offender of special concern, as defined in this
section;
(b) A person who is on felony probation or community control for any
offense committed on or after the effective date of this act and who is
arrested for a qualifying offense as defined in this section; or
(c) A person who is on felony probation or community control and has
previously been found by a court to be a habitual violent felony offender
as defined in s. 775.084(1)(b), a three-time violent felony offender as
defined in s. 775.084(1)(c), or a sexual predator under s. 775.21, and who
is arrested for committing a qualifying offense as defined in this
section on or after the effective date of this act.
(5) In any hearing in which the failure of a probationer or offender in
community control to pay restitution or the cost of supervision as provided
in s. 948.09, as directed, is established by the state, if the probationer
or offender asserts his or her inability to pay restitution or the cost of
supervision, it is incumbent upon the probationer or offender to prove by
clear and convincing evidence that he or she does not have the present
resources available to pay restitution or the cost of supervision despite
sufficient bona fide efforts legally to acquire the resources to do so. If
the probationer or offender cannot pay restitution or the cost of
supervision despite sufficient bona fide efforts, the court shall consider
alternate measures of punishment other than imprisonment. Only if alternate
measures are not adequate to meet the state's interests in punishment and
deterrence may the court imprison a probationer or offender in community
control who has demonstrated sufficient bona fide efforts to pay
restitution or the cost of supervision.
(6) Any parolee in a community control program who has allegedly violated
the terms and conditions of such placement is subject to the provisions of
ss. 947.22 and 947.23.
(7) Any provision of law to the contrary notwithstanding, whenever
probation, community control, or control release, including the
probationary, community control portion of a split sentence, is violated
and the probation or community control is revoked, the offender, by
reason of his or her misconduct, shall be deemed to have forfeited all
gain-time or commutation of time for good conduct, as provided by law,
earned up to the date of his or her release on probation, community
control, or control release. This subsection does not deprive the
prisoner of his or her right to gain-time or commutation of time for good
conduct, as provided by law, from the date on which the prisoner is
returned to prison. However, if a prisoner is sentenced to incarceration
following termination from a drug punishment program imposed as a
condition of probation, the sentence may include incarceration without
the possibility of gain-time or early release for the period of time
remaining in his or her treatment program placement term.
(8)(a) In addition to complying with the provisions of subsections
(1)-(7), this subsection provides further requirements regarding a
probationer or offender in community control who is a violent felony
offender of special concern. The provisions of this subsection shall
control over any conflicting provisions in subsections (1)-(7). For
purposes of this subsection, the term "convicted" means a determination of
guilt which is the result of a trial or the entry of a plea of guilty or
nolo contendere, regardless of whether adjudication is withheld.
(b) For purposes of this section and ss. 903.0351, 948.064, and 921.0024,
the term "violent felony offender of special concern" means a person who is
on:
1. Felony probation or community control related to the commission of a
qualifying offense committed on or after the effective date of this act;
2. Felony probation or community control for any offense committed on or
after the effective date of this act, and has previously been convicted of
a qualifying offense;
3. Felony probation or community control for any offense committed on or
after the effective date of this act, and is found to have violated that
probation or community control by committing a qualifying offense;
4. Felony probation or community control and has previously been found by
a court to be a habitual violent felony offender as defined in s.
775.084(1)(b) and has committed a qualifying offense on or after the
effective date of this act;
5. Felony probation or community control and has previously been found by
a court to be a three-time violent felony offender as defined in s.
775.084(1)(c) and has committed a qualifying offense on or after the
effective date of this act; or
6. Felony probation or community control and has previously been found by
a court to be a sexual predator under s. 775.21 and has committed a
qualifying offense on or after the effective date of this act.
In a felony case the minimum period of probation is the same as the minimum term of imprisonment applicable to the offense and the maximum period of community supervision is (subject to extensions), 10 years, for a felony other than a third degree felony described by Subdivision (2); and
(2) five years, for the folio-wing third degree felonies:
(A) a third degree felony under Title 7, Penal Code, other than online solicitation of a minor; and
(B) a third degree felony under Chapter 481, Health and Safety Code.
When probation is violated, the court retains jurisdiction to hold a hearing and to revoke, continue, or modify community supervision, regardless of whether the period of probation imposed on the defendant has expired, if before the expiration the attorney representing the state files a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest of the defendant.
Please see the following TX statute:
Art. 42.12 CODE CRIM. P. [781d] Community supervision
**Update Notice: This section has been amended by
SENATE BILL No. 1969 OF 81st LEGISLATURE
SENATE BILL No. 1832 OF 81st LEGISLATURE
HOUSE BILL No. 590 OF 81st LEGISLATURE
HOUSE BILL No. 1633 OF 81st LEGISLATURE
Purpose
Sec. 1. It is the purpose of this article to place wholly within the
state courts the responsibility for determining when the imposition of
sentence in certain cases shall be suspended, the conditions of community
supervision, and the supervision of defendants placed on community
supervision, in consonance with the powers assigned to the judicial
branch of this government by the Constitution of Texas. It is the purpose
of this article to remove from existing statutes the limitations, other
than questions of constitutionality, that have acted as barriers to
effective systems of community supervision in the public interest.
Definitions
Sec. 2. In this article:
(1) "Court" means a court of record having original criminal
jurisdiction.
(2) "Community supervision" means the placement of a defendant by a
court under a continuum of programs and sanctions, with conditions
imposed by the court for a specified period during which:
(A) criminal proceedings are deferred without an adjudication of
guilt; or
(B) a sentence of imprisonment or confinement, imprisonment and fine,
or confinement and fine, is probated and the imposition of sentence is
suspended in whole or in part.
(3) "Supervision officer" means a person appointed or employed under
Section 76.004, Government Code, to supervise defendants placed on
community supervision.
(4) "Electronic monitoring" includes voice tracking systems, position
tracking systems, position location systems, biometric tracking systems,
and any other electronic or telecommunications system that may be used to
assist in the supervision of individuals under this article.
Judge Ordered Community Supervision
Sec. 3. (a) A judge, in the best interest of justice, the public, and
the defendant, after conviction or a plea of guilty or nolo contendere,
may suspend the imposition of the sentence and place the defendant on
community supervision or impose a fine applicable to the offense and
place the defendant on community supervision.
(b) In a felony case the minimum period of community supervision is
the same as the minimum term of imprisonment applicable to the offense
and the maximum period of community supervision is, subject to the
extensions provided by Section 22:
(1) 10 years, for a felony other than a third degree felony described
by Subdivision (2); and
(2) five years, for the folio-wing third degree felonies:
(A) a third degree felony under Title 7, Penal Code, other than an
offense under Section 33.021(c), Penal Code; and
(B) a third degree felony under Chapter 481, Health and Safety Code.
(c) The maximum period of community supervision in a misdemeanor case
is two years.
(d) A judge may increase the maximum period of community supervision
in the manner provided by Section 22(c) or 22A of this article.
(e) A defendant is not eligible for community supervision under this
section if the defendant:
(1) is sentenced to a term of imprisonment that exceeds 10 years; or
(2) is sentenced to serve a term of confinement under Section 12.35,
Penal Code.
(f) The minimum period of community supervision for a felony described
by Section 13B(b) is five years and the maximum period of supervision
is 10 years.
(g) A judge shall not deny community supervision to a defendant based
solely on the defendant's inability to speak, read, write, hear, or
understand English.
(h) The minimum period of community supervision under this section for
an offense under Section 30.04, Penal Code, punishable as a Class A
misdemeanor with a minimum term of confinement of six months is one
year.
Secs. 3a to 3f. [Blank].
Limitation on Judge Ordered Community Supervision
Sec. 3g. (a) The provisions of Section 3 of this article do not apply:
(1) to a defendant adjudged guilty of an offense under:
(A) Section 19.02, Penal Code (Murder);
(B) Section 19.03, Penal Code (Capital murder);
(C) Section 21.11(a)(1), Penal Code (Indecency with a child);
(D) Section 20.04, Penal Code (Aggravated kidnapping);
(E) Section 22.021, Penal Code (Aggravated sexual assault);
(F) Section 29.03, Penal Code (Aggravated robbery);
(G) Chapter 481, Health and Safety Code, for which punishment is
increased under:
(i) Section 481.140, Health and Safety Code; or
(ii) Section 481.134(c), (d), (e), or (f), Health and Safety Code, if
it is shown that the defendant has been previously convicted of an
offense for which punishment was increased under any of those
subsections;
(H) Section 22.011, Penal Code (Sexual assault); or
[EDITORS' NOTE: SEE BELOW FOR ADDITIONAL VERSION OF 3g(a)(1)(I) ENACTED
BY Acts 2007, 80th Leg., ch. 593, § 1.05.]
(I) Section 22.04(a)(1), Penal Code (Injury to a child, elderly
individual, or disabled individual), if the offense is punishable as a
felony of the first degree and the victim of the offense is a child;
or
[EDITORS' NOTE: SEE ABOVE FOR ADDITIONAL VERSION OF 3g(a)(1)(I) ENACTED
BY Acts 2007, 80th Leg., ch. 405, § 1.]
(I) Section 43.25, Penal Code (Sexual performance by a child); or
(2) to a defendant when it is shown that a deadly weapon as defined in
Section 1.07, Penal Code, was used or exhibited during the commission
of a felony offense or during immediate flight therefrom, and that the
defendant used or exhibited the deadly weapon or was a party to the
offense and knew that a deadly weapon would be used or exhibited. On
an affirmative finding under this subdivision, the trial court shall
enter the finding in the judgment of the court. On an affirmative
finding that the deadly weapon was a firearm, the court shall enter
that finding in its judgment.
(b) If there is an affirmative finding under Subsection (a)(2) in the
trial of a felony of the second degree or higher that the deadly
weapon used or exhibited was a firearm and the defendant is granted
community supervision, the court may order the defendant confined in
the institutional division of the Texas Department of Criminal Justice
for not less than 60 and not more than 120 days. At any time after the
defendant has served 60 days in the custody of the institutional
division, the sentencing judge, on his own motion or on motion of the
defendant, may order the defendant released to community supervision.
The institutional division shall release the defendant to community
supervision after he has served 120 days.
Jury Recommended Community Supervision
Sec. 4. (a) A jury that imposes confinement as punishment for an
offense may recommend to the judge that the judge suspend the imposition
of the sentence and place the defendant on community supervision. A judge
shall suspend the imposition of the sentence and place the defendant on
community supervision if the jury makes that recommendation in the
verdict.
(b) If the jury recommends to the judge that the judge place the
defendant on community supervision, the judge shall place the defendant
on community supervision for any period permitted under Section 3(b) or
3(c) of this article, as appropriate.
(c) A judge may increase the maximum period of community supervision in
the manner provided by Section 22(c) or Section 22A of this article.
(d) A defendant is not eligible for community supervision under this
section if the defendant:
(1) is sentenced to a term of imprisonment that exceeds 10 years;
(2) is convicted of a state jail felony for which suspension of the
imposition of the sentence occurs automatically under Section 15(a);
(3) does not file a sworn motion under Subsection (e) of this
section or for whom the jury does not enter in the verdict a finding that the
information contained in the motion is true;
(4) is adjudged guilty of an offense for which punishment is increased
under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if
it is shown that the defendant has been previously convicted of an
offense for which punishment was increased under any one of those
subsections; or
[EDITORS' NOTE: SEE BELOW FOR ADDITIONAL VERSION OF 4(d)(5) ENACTED BY
Acts
2007, 80th Leg., ch. 1205, § 3.]
(5) is convicted of an offense listed in Section 3g(a)(1)(C), (E), or
(H), if the victim of the offense was younger than 14 years of age at
the time the offense was committed;
[EDITORS' NOTE: SEE ABOVE FOR ADDITIONAL VERSION OF 4(d)(5) ENACTED BY
Acts
2007, 80th Leg., ch. 593, § 1.06.]
(5) is adjudged guilty of an offense under Section 19.02, Penal Code.
(6) is convicted of an offense listed in Section 3g(a)(1)(D), if the
victim of the offense was younger than 14 years of age at the time the
offense was committed and the actor committed the offense with the
intent to violate or abuse the victim sexually; or
(7) is convicted of an offense listed in Section 3g(a)(1)(I).
(e) A defendant is eligible for community supervision under this
section only if before the trial begins the defendant files a written
sworn motion with the judge that the defendant has not previously been
convicted of a felony in this or any other state, and the jury enters
in the verdict a finding that the information in the defendant's
motion is true.
(f) The minimum period of community supervision under this section for
an offense under Section 30.04, Penal Code, punishable as a Class A
misdemeanor with a minimum term of confinement of six months is one
year.
Deferred Adjudication; Community Supervision
Sec. 5. (a) Except as provided by Subsection (d) of this section, when
in the judge's opinion the best interest of society and the defendant
will be served, the judge may, after receiving a plea of guilty or plea
of nolo contendere, hearing the evidence, and finding that it
substantiates the defendant's guilt, defer further proceedings without
entering an adjudication of guilt, and place the defendant on community
supervision. A judge may place on community supervision under this
section a defendant charged with an offense under Section 21.11, 22.011,
or 22.021, Penal Code, regardless of the age of the victim, or a
defendant charged with a felony described by Section 13B(b) of this
article, only if the judge makes a finding in open court that placing the
defendant on community supervision is in the best-interest of the
victim. The failure of the judge to find that deferred adjudication is in
the best interest of the victim is not. grounds for the defendant to set
aside the plea, deferred adjudication, or any subsequent conviction or
sentence. After placing the defendant on community supervision under this
section, the judge shall inform the defendant orally or in writing of the
possible consequences under Subsection (b) of this section of a violation
of community supervision. If the information is provided orally, the
judge must record and maintain the judge's statement to the defendant.
The failure of a judge 10 inform a defendant of possible consequences
under Subsection (b) of this section is not a ground for reversal unless
the defendant shows that he was harmed by the failure of the judge to
provide the information. In a felony case, the period of community
supervision may not exceed 10 years. For a defendant charged with a
felony under Section 21.11, 22.011, or 22.021, Penal Code, regardless of
the age of the victim, and for a defendant charged with a felony
described by Section 13B(b) of this article, the period of community
supervision may not be less than five years. In a misdemeanor ease, the
period of community supervision may not exceed two years. A judge may
increase the maximum period of community supervision in the manner
provided by Section 22(c) or 22A of this article. The judge may impose a
fine applicable to the offense and require any reasonable conditions of
Community supervision, including mental health treatment under
Section 11(d) of this article, that a judge could impose on a defendant placed on
community supervision for a conviction that was probated and suspended,
including confinement. The provisions of Section 15 of this
article specifying whether a defendant convicted of a state jail felony is
to be confined in a county jail or state jail felony facility and
establishing the minimum and maximum terms of confinement as a condition of
community supervision apply in the same manner to a defendant placed on
community supervision after pleading guilty or nolo contendere to a state
jail felony. However, upon written motion of the defendant requesting final
adjudication filed within 30 days after entering such plea and the
deferment of adjudication, the judge shall proceed to final adjudication
as in all other cases.
(b) On violation of a condition of community supervision imposed under
Subsection (a) of this section, the defendant may be arrested and
detained as provided in Section 21 of this article. The defendant is
entitled to a hearing limited to the determination by the court of
whether it proceeds with an adjudication of guilt on the original
charge. This determination is reviewable in the same manner as a
revocation hearing conducted under Section 21 of this article in a case
in which an adjudication of guilt had not been deferred. After an
adjudication of guilt, all proceedings, including assessment of
punishment, pronouncement of sentence, granting of community supervision,
and defendant's appeal continue as if the adjudication of guilt had not
been deferred. A court assessing punishment after an adjudication of
guilt of a defendant charged with a state jail felony may suspend the
imposition of the sentence and place the defendant on community
supervision or may order the sentence to be executed, regardless of
whether the defendant has previously been convicted of a felon).
(c) On expiration of a community supervision period imposed under
Subsection (a) of this section, if the judge has not proceeded to
adjudication of guilt, the judge shall dismiss the proceedings against
the defendant and discharge him. The judge may dismiss the proceedings
and discharge a defendant, other than a defendant charged with an offense
requiring the defendant to register as a sex offender under Chapter 62,
as added by Chapter 668, Acts of the 75th Legislature, Regular Session,
1997, prior to the expiration of the term of community supervision if in
the judge's opinion the best interest of society and the defendant will
be served. The judge may not dismiss the proceedings and discharge a
defendant charged with an offense requiring the defendant to register
under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature,
Regular Session, 1997. Except as provided by Section 12.42(g), Penal
Code, a dismissal and discharge under this section may not be deemed a
conviction for the purposes of disqualifications or disabilities imposed
by law for conviction of an offense. For any defendant who receives a
dismissal and discharge under this section:
(1) upon conviction of a subsequent offense, the fact that the
defendant had previously received community supervision with a deferred
adjudication of guilt shall be admissible before the court or jury to be
considered on the issue of penalty;
(2) if the defendant is an applicant for a license or is a licensee
under Chapter 42, Human Resources Code, the Texas Department of Human
Services may consider the fact that the defendant previously has received
community supervision with a deferred adjudication of guilt under this
section in issuing, renewing, denying, or revoking a license under that
chapter; and
(3) if the defendant is a person who has applied for registration to
provide mental health or medical services for the rehabilitation of sex
offenders, the Interagency Council on Sex Offender Treatment may consider
the fact that the defendant has received community supervision under this
section in issuing, renewing, denying, or revoking a license or
registration issued by that council.
(d) In all other cases the judge may grant deferred adjudication
unless:
(1) the defendant is charged with an offense:
(A) under Sections 49.04-49.08, Penal Code; or
(B) for which punishment may be increased under Section 481.134(c),
(d), (e), or (f), Health and Safety Code, if it is shown that the
defendant has been previously convicted of an offense for which
punishment was increased under any one of those subsections;
(2) the defendant:
(A) is charged with an offense under Section 21.11, 22.011, or 22.021,
Penal Code, regardless of the age of the victim, or a felony described
by Section 13B(b) of this article; and
(B) has previously been placed on community supervision for any
offense under Paragraph (A) of this subdivision; or
(3) the defendant is charged with an offense under:
(A) Section 21.02. Penal Code: or
(B) Section 22.021, Penal Code, that is punishable under Subsection (f)
of that section or under Section 12.42(c)(3), Penal Code.
(e) If a judge places on community supervision under this section a
defendant charged with an offense under Section 20.02, 20.03, or
20.04, Penal Code, or an attempt, conspiracy, or solicitation to
commit one of those offenses, the judge shall make an affirmative
finding of fact and file a statement of that affirmative finding with
the papers in the case if the judge determines that the victim or
intended victim was younger than 17 years of age at the time of the
offense.
(f) A record in the custody of the court clerk regarding a case in
which a person is granted deferred adjudication is not confidential.
(g) If a judge places on community supervision under this section a
defendant charged with an offense under Section 21.11, 22.011, 22.021,
or 43.25, Penal Code, the judge shall make an affirmative finding of
fact and file a statement of that affirmative finding with the papers
in the case if the judge determines that:
(1) at the time of the offense, the defendant was younger than 19
year's of age and the victim or intended victim was at least 13 years of
age; and
(2) the charge to which the plea is entered under this section is
based solely on the ages of the defendant and the victim or intended
victim at the time of the offense.
(h) A court retains jurisdiction to hold a hearing under Subsection (b)
and to proceed with an adjudication of guilt, regardless of whether the
period of community supervision imposed on the defendant has expired, if
before the expiration the attorney representing the state files a motion
to proceed with the adjudication and a capias is issued for the arrest of
the defendant.
(i) If a judge places on community super-vision under this section a
defendant charged with an offense, on the motion of the attorney
representing the state the judge shall make an affirmative finding of
fact and file a statement of that affirmative finding in the papers in
the case if the judge determines that, regardless of whether the conduct
at issue is the subject of the prosecution or part of the same criminal
episode as the conduct that is the subject of the prosecution, a victim in
the trial:
(1) is or has been a victim of a severe form of trafficking in
persons, as defined by 22 U.S.C. Section 7102(8); or
(2) has suffered substantial physical or mental abuse as a result of
having been a victim of criminal activity described by
8 U.S.C. Section 1101(a)(15)(U)(iii).
(j) That part of the papers in the case containing an affirmative
finding under Subsection (i):
(1) must include specific information identifying the victim, as
available;
(2) may not include information identifying the victim's location; and
(3) is confidential, unless written consent for the release of the
affirmative finding is obtained from the victim or, if the victim is
younger than 18 years of age, the victim's parent or guardian,
Continuing Court Jurisdiction in Felony Cases
Sec. 6. (a) For the purposes of this section, the jurisdiction of a
court in which a sentence requiring imprisonment in the institutional
division of the Texas Department of Criminal Justice is imposed by the
judge of the court shall continue for 180 days from the date the
execution of the sentence actually begins. Before the expiration of
180 days from the date the execution of the sentence actually begins,
the judge of the court that imposed such sentence may on his own
motion, on the motion of the attorney representing the state, or on
the written motion of the defendant, suspend further execution of the
sentence and place the defendant on community supervision under the
terms and conditions of this article, if in the opinion of the judge
the defendant would not benefit from further imprisonment and:
(1) the defendant is otherwise eligible for community supervision
under this article; and
(2) the defendant had never before been incarcerated in a penitentiary
serving a sentence for a felony.
(b) When the defendant or the attorney representing the state files a
written motion requesting suspension by the judge of further execution of
the sentence and placement of the defendant on community supervision, and
when requested to do so by the judge, the clerk of the court shall
request a copy of the defendant's record while imprisoned from the
institutional division of the Texas Department of Criminal Justice or, if
the defendant is confined in county jail, from the sheriff. Upon receipt
of such request, the institutional division of the Texas Department of
Criminal Justice or the sheriff shall forward to the judge, as soon as
possible, a full and complete copy of the defendant's record while
imprisoned or confined. When the defendant files a written motion
requesting suspension of further execution of the sentence and placement
on community supervision, he shall immediately deliver or cause to be
delivered a true and correct copy of the motion to the office of the
attorney representing the state.
(c) The judge may deny the motion without a hearing but may not grant
the motion without holding a hearing and providing the attorney
representing the state and the defendant the opportunity to present
evidence on the motion.
Continuing Court Jurisdiction in Misdemeanor Cases
Sec. 7. (a) For the purposes of this section, the jurisdiction of the
courts in this state in which a sentence requiring confinement in a
jail is imposed for conviction of a misdemeanor shall continue for
180 days from the date the execution of the sentence actually begins.
The judge of the court that imposed such sentence may on his own
motion, on the motion of the attorney representing the state, or on
the written motion of the defendant suspend further execution of the
sentence and place the defendant on community supervision under the
terms and conditions of this article, if in the opinion of the judge
the defendant would not benefit from further confinement.
(b) When the defendant files a written motion with the court requesting
suspension of further execution of the sentence and placement on
community supervision or when requested to do so by the judge, the clerk
of the court shall request a copy of the defendant's record while
confined from the agency operating the jail where the defendant is
confined. Upon receipt of such request, the agency operating the jail
where the defendant is confined shall forward to the court as soon as
possible a full and complete copy of the defendant's record while
confined.
(c) The judge may deny the motion without a hearing but may not grant a
motion without holding a hearing and allowing the attorney representing
the state and the defendant to present evidence in the case.
State Boot Camp Program
Sec. 8. (a) For the purposes of this section, the jurisdiction of a
court in which a sentence requiring imprisonment in the institutional
division of the Texas Department of Criminal Justice is imposed for
conviction of a felony shall continue for 180 days from the date on which
the convicted person is received into custody by the institutional
division. After the expiration of 75 days but prior to the expiration of
180 days from the date on which the convicted person is received into
custody by the institutional division, the judge of the court that
imposed the sentence may suspend further execution of the sentence
imposed and place the person on community supervision under the terms and
conditions of this article, if in the opinion of the judge the person
would not benefit from further imprisonment. The court shall clearly
indicate in its order recommending the placement of the person in the
state boot camp program that the court is not retaining jurisdiction over
the person for the purposes of Section 6 of this article. A court may
recommend a person for placement in the state boot camp program only if:
(1) the person is otherwise eligible for community supervision under
this article;
(2) the person is 17 years of age or older but younger than 26 years
and is physically and mentally capable of participating in a program
that requires strenuous physical activity; and
(3) the person is not convicted of an offense punishable as a state
jail felony.
(b) On the 76th day after the day on which the convicted person is
received into custody by the institutional division, the institutional
division shall send the convicting court the record of the person's
progress, conduct, and conformity to institutional division rules.
(c) The judge's recommendation that a person be placed in the state
boot camp program created under Section 499.052, Government Code, does
not give the court the power to hold the Texas Department of Criminal
Justice or any officer or employee of the department in contempt of
court for failure to adhere to that recommendation.
Presentence Investigations
Sec. 9. (a) Except as provided by Subsection (g) of this section,
before the imposition of sentence by a judge in a felony case, and except
as provided by Subsection (b) of this section, before the imposition of
sentence by a judge in a misdemeanor case the judge shall direct a
supervision officer to report to the judge in writing on the
circumstances of the offense with which the defendant is charged, the
amount of restitution necessary to adequately compensate a victim of the
offense, the criminal and social history of the defendant, and any other
information relating to the defendant or the offense requested by the
judge. It is not necessary that the report contain a sentencing
recommendation, but the report must contain a proposed client supervision
plan describing programs and sanctions that the community supervision and
corrections department would provide the defendant if the judge suspended
the imposition of the sentence or granted deferred adjudication.
(b) The judge is not required to direct a supervision officer to
prepare a report in a misdemeanor case if:
(1) the defendant requests that a report not be made and the judge
agrees to the request; or
(2) the judge finds that there is sufficient information in the record
to permit the meaningful exercise of sentencing discretion and the
judge explains this finding on the record.
(c) The judge may not inspect a report and the contents of the report
may not be disclosed to any person unless:
(1) the defendant pleads guilty or nolo contendere or is convicted of
the offense; or
(2) the defendant, in writing, authorizes the judge to inspect the
report.
(d) Unless waived by the defendant, at least 48 hours before sentencing
a defendant, the judge shall permit the defendant or his counsel to read
the presentence report.
(e) The judge shall allow the defendant or his attorney to comment on a
presentence investigation or a postsentence report and, with the approval
of the judge, introduce testimony or other information alleging a factual
inaccuracy in the investigation or report.
(f) The judge shall allow the attorney representing the state access
to any information made available to the defendant under this section.
(g) A judge is not required to direct an officer to prepare a
presentence report in a felony case under this section if:
(1) punishment is to be assessed by a jury;
(2) the defendant is convicted of or enters a plea of guilty or nolo
contendere to capital murder;
(3) the only available punishment, is imprisonment; or
(4) the judge is informed that a plea bargain agreement exists, under
which the defendant agrees to a punishment of imprisonment, and the
judge intends to follow the agreement.
(h) On a determination by the judge that alcohol or drug abuse may
have contributed to the commission of the offense, or in any case
involving a second or subsequent offense under Section 49.04, Penal
Code, committed within five years of the date on which the most recent
preceding offense was committed, or a second or subsequent offense
under Section 49.07 or 49.08 of that code that involves the operation
of a motor vehicle, committed within five years of the date on which
the most recent preceding offense was committed, the judge shall
direct a supervision officer approved by the community supervision and
corrections department or the judge or a person, program, or other
agency approved by the Texas Commission on Alcohol and Drug Abuse, to
conduct an evaluation to determine the appropriateness of, and a
course of conduct necessary for, alcohol or drug rehabilitation for a
defendant and to report that evaluation to the judge. The evaluation
shall be made:
(1) after arrest and before conviction, if requested by the defendant;
(2) after conviction and before sentencing, if the judge assesses
punishment in the case;
(3) after sentencing and before the entry of a final judgment, if the
jury assesses punishment in the case; or
(4) after community supervision is granted, if the evaluation is
required as a condition of community supervision under Section 13 of
this article.
(i) A presentence investigation conducted on any defendant convicted of
a felony offense who appears to the judge through its own observation or
on suggestion of a party to have a mental impairment shall include a
psychological evaluation which determines, at a minimum, the defendant's
IQ and adaptive behavior score. The results of the evaluation shall be
included in the report to the judge as required by Subsection (a) of this
section,
(j) The judge by order may direct that any information and records that
are not privileged and that are relevant to a report required by
Subsection (a) or Subsection (k) of this section be released to an
officer conducting a presentence investigation under Subsection (i) of
this section or a postsentence report under Subsection (k) of this
section. The judge may also issue a subpoena to obtain that information.
A report and all information obtained in connection with a presentence
investigation or postsentence report are confidential and may be released
only:
(1) to those persons and under those circumstances authorized under
Subsections (d), (e), (f), (h), (k), and (l) of this section;
(2) pursuant to Section 614.017. Health and Safety Code; or
(3) as directed by the judge for the effective supervision of the
defendant.
(k) If a presentence report in a felony case is not required under this
section, the judge may direct the officer to prepare a postsentence
report containing the same information that would have been required for
the presentence report, other than a proposed client supervision plan and
any information that is reflected in the judgment. If the postsentence
report is ordered, the officer shall send the report to the clerk of the
court not later than the 30th day after the date on which sentence is
pronounced or deferred adjudication is granted, and the clerk shall
deliver the postsentence report with the papers in the case to a
designated officer of the Texas Department of Criminal Justice, as
described by Section 8(a), Article 42.09.
(l) If a person is a sex offender, a supervision officer may release
information in a presentence or postsentence report concerning the social
and criminal history of the person to a person who:
(1) is licensed or certified in this state to provide mental health or
medical services, including a:
(A) physician;
(B) psychiatrist;
(C) psychologist;
(D) licensed professional counselor;
(E) licensed marriage and family therapist; or
(F) social worker; and
(2) provides mental health or medical services for the rehabilitation
of the person.
(m) Repealed by Acts 2003, 78th Leg., ch. 353, § 5.
Sex Offenders: Presentence Investigation and Postsentence Treatment
and Supervision
Sec. 9A. (a) In this section:
(1) "Council" means the Council on Sex Offender Treatment.
(2) "Sex offender" means a person who has been convicted or has
entered a plea of guilty or nolo contendere for an offense under any
one of the following provisions of the Penal Code:
(A) Section 20.04(a)(4) (Aggravated Kidnapping), if the person
committed the offense with the intent to violate or abuse the victim
sexually;
(B) Section 21.08 (Indecent Exposure);
(C) Section 21.11 (Indecency with a Child);
(D) Section 22.011 (Sexual Assault);
(E) Section 22.021 (Aggravated Sexual Assault);
(F) Section 25.02 (Prohibited Sexual Conduct);
(G) Section 30.02 (Burglary), if:
(i) the offense is punishable under Subsection (d) of that
section; and
(ii) the person committed the offense with the intent to commit a
felony listed in this subsection;
(H) Section 43.25 (Sexual Performance by a Child); or
(I) Section 43.26 (Possession or Promotion of Child Pornography).
(b) If the defendant is a sex offender, a supervision officer may
release information in a presentence or postsentence report concerning
the social and criminal history of the defendant to a person who:
(1) is licensed or certified in this state to provide mental health or
medical services, including a:
(A) physician;
(B) psychiatrist;
(C) psychologist;
(D) licensed professional counselor;
(E) licensed marriage and family therapist; or
(F) certified social worker; and
(2) provides mental health or medical services for the rehabilitation
of the defendant.
(c) If the defendant is a sex offender, the judge shall direct a
supervision officer approved by the community supervision and corrections
department or the judge or a person, program, or other agency approved by
the council to evaluate the appropriateness of, and a course of conduct
necessary for, treatment, specialized supervision, or rehabilitation of
the defendant and to report the results of the evaluation to the judge.
The judge may require the evaluation to use offense-specific standards of
practice adopted by the council and may require the report to reflect
those standards. The evaluation shall be made after conviction and before
the entry of a final judgment or, if requested by the defendant, after
arrest and before conviction.
Authority to Impose, Modify, or Revoke Community Supervision
Sec. 10. (a) Only the court in which the defendant was tried may grant
community supervision, impose conditions, revoke the community
supervision, or discharge the defendant, unless the judge has transferred
jurisdiction of the case to another court with the latter's consent.
Except as provided by Subsection (d) of this section, only the judge may
alter conditions of community supervision. In a felony case, only the
judge who originally sentenced the defendant may suspend execution
thereof and place the defendant under community supervision pursuant to
Section 6 of this article. If the judge who originally sentenced the
defendant is deceased or disabled or if the office is vacant and the
judge who originally sentenced the defendant is deceased or disabled or
if the office is vacant and a motion is filed in accordance with
Section 6 of this article, the clerk of the court shall promptly forward a copy
of the motion to the presiding judge of the administrative judicial
district for that court, who may deny the motion without a hearing or
appoint a judge to hold a healing on the motion.
(b) After a defendant has been placed on community supervision,
jurisdiction of the case may be transferred to a court of the same rank
in this state having geographical jurisdiction where the defendant is
residing or where a violation of the conditions of community supervision
occurs. Upon transfer, the clerk of the court of original jurisdiction
shall forward a transcript of such portions of the record as the
transferring judge shall direct to the court accepting jurisdiction,
which latter court shall thereafter proceed as if the trial and
conviction had occurred in that court.
(c) Any judge of a court having geographical jurisdiction where the
defendant is residing or where a violation of the conditions of community
supervision occurs may issue a warrant for his arrest, but the
determination of action to be taken after arrest shall be only by
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