Mount Pleasant, TX asked in Criminal Law for Texas

Q: If a judge does not verbally disclose full terms of probation during sentencing does it disqualify the ruling? Texas.

The DA said no jail time, was not written in the write up signed by him, the judge during sentencing did not mention any jail time. After ruling, speaking to the count clerk, I was reading over and she told me it was the same conditions the judge just went over ( court was busy that day). I later find out at probation that it’s written for a 72 hour jail time to be completed within the 23 months, but it was never disclosed to me by the DA nor the judge.

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2 Lawyer Answers
Kiele Linroth Pace
Kiele Linroth Pace
Answered
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: That is something your criminal defense attorney should have explained. If you were trying to do it yourself without an attorney, you must always ALWAYS read the documents before signing them. Actually, if it were me, I would probably read them even if I did have an attorney, and I would... because an attorney who represents herself has a foolish client.

Anyway, if the charge was DWI, the jail time is built right into the black letter law. Section 49.04(b) says, in part, "[...] an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours." Your attorney may have negotiated that into the time you already spent when originally arrested... or if it was just a clerical mistake, the attorney might be able to get the court to do a nunc pro tunc. Bottom line is that you need to ask your attorney about this, if you have one.

Michael Hamilton Rodgers
Michael Hamilton Rodgers
Answered
  • Criminal Law Lawyer
  • Dallas, TX
  • Licensed in Texas

A: So, for whatever reason, you didn't have a lawyer in this case, right? Sounds like the prosecutor filled out the paperwork and failed to include the 72-hour jail stay required as a term and condition of your probation. You signed this paperwork and told the judge you had read and understood the plea bargain. You also gave up your right to an appeal.

While the judge isn't required by law to advise you of every aspect of the plea agreement you have just signed, the question is whether under these circumstances, your guilty plea was "freely and voluntarily" entered.

NOW is the time you definitely need to get a lawyer. If the plea papers you signed made no mention of the 72-hour jail requirement, and you weren't told about it by the prosecutor or the judge, the lawyer you need to hire can very likely persuade the Court to allow you to appeal, or more likely, the lawyer can get the Court to grant a motion for new trial and allow you to withdraw your guilty plea and start all over.

If that happens and the prosecutor won't change his recommendation that you serve the 72 hours in jail, what are you planning to do? Plead guilty without a plea bargain (called an "open plea") or go to trial? If your answer is that you'd probably go on and agree to do the 72 hours, then you need probably to forget the whole thing and keep the plea bargain as it stands.

And learn your lesson... never represent yourself in a criminal case.

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