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July-August 2010

The all-important judgment

Why it’s important for prosecutors to spend some extra time on judgments to get them right

Melinda Fletcher

Appellate Attorney for the Special Prosecution Unit in Amarillo

Sure, we all know that judgments reflect the sentence of the court. But can you name some other uses? Have you thought about all of the things your judgment does after you present it to the judge? Have you thought about the possible consequences of it being wrong? This article will reflect on all of those things. Please take a few minutes and consider all of the things your judgment does and then reconsider the amount of time you spend on it.

    “A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant.”1 A judgment tells the clerk’s office, probation office, local jail, prison, or even the parole board what should be done by this defendant. It also tells the defendant and the rest of the world.

    The bad news is that judgments too often fail to correctly perform all of their intended functions. The good news is that we can easily fix that.

Main uses for judgments

Here are a few uses, though there certainly may be more.

Sentencing

If a defendant was sentenced to do time, the jail or prison will look to the judgment to calculate the time he was ordered to do and the credit he was given for time already served. If the defendant went to prison, prison officials will use the information in the judgment to determine when the defendant will be released or considered for parole.

Enhancing punishment

If a defendant gets into trouble again, a copy of the judgment may be introduced in evidence to enhance the defendant’s punishment on the new case.

Licensing

When the State or other government agency considers licensing a person for just about any reason, it usually looks at the criminal history. A judgment could be the difference in whether someone receives a government-issued license.

Screening potential jurors

When potential jurors are qualified, they are told about prior convictions that may disqualify them. They are often confused about whether their particular conviction really falls into one of the disqualifying categories. A judgment may answer that question.

Civil commitment of sexually violent predators (SVPs)

If a defendant was convicted of a sexual crime, prior to his release from prison he may be considered for a civil commitment. This is similar to parole but used for some repeat sexually violent offenders who have completed their prison sentences and would otherwise be released into society without appropriate restrictions. (See the related story on page 26.)

    With all of these people looking at your judgments, it is pretty important to get it right.

What could go wrong?

Is it necessary to prepare a judgment yourself? Or to even read it yourself? Surely those nice people in the office that have been preparing judgments for years get them right, don’t they? Besides, if a judgment is wrong, judges won’t sign it—will they?

    The first thing that can go wrong with a judgment is for it to reflect an illegal sentence. Maybe the judgment was filled out incorrectly, maybe everyone made a mistake and thought it was a legal sentence, or maybe everyone knew it was illegal but they still agreed to it for whatever reason. A judgment that reflects an illegal sentence can be attacked on direct appeal or by a writ of habeas corpus.2 The result of an attack will most likely be that the case is returned to the court, and the State has to start over,3 which is not something we usually like to have to handle. Consider that this may happen many, many years after the original judgment. We all know that cases rarely get better for the prosecution with the passage of time, so we hate seeing a very old case get dumped onto our desk for re-prosecution.

    Other things that can, and frequently do, go wrong is for the judgment to be incomplete or erroneous. It may not reflect an affirmative finding, findings on enhancement paragraphs, credit for time served, or any number of other things. An incomplete judgment is just that: It is incomplete and therefore not final.4 An erroneous judgment brings up the argument of whether there was merely a clerical error or if a judicial error is the root of the problem.

    If the judgment does not accurately reflect the sentence announced in open court, it is considered a clerical error and may be easily corrected by the entry of a judgment nunc pro tunc.5 If the judgment reflects something that is not in the record, the issue becomes much more complex. Consider the case of Guerrero v. State.6 The judgment in that case showed the defendant convicted of aggravated assault with a deadly weapon but did not reflect an affirmative finding of a deadly weapon. The defendant argued on appeal that the judgment and sentence were void; the State argued that it was a clerical error and an affirmative finding should be entered. The court of appeals decided neither side was right, rather that the judge had made a judicial decision not to enter an affirmative finding and the sentence was still legal. How much time and effort could have been saved by a good record and a judgment that accurately reflected that record?

    The third area that often causes problems is when an indictment contained multiple counts and only one judgment was prepared. Trying to decipher or litigate which count(s) the defendant was convicted of and which sentence(s) were imposed can be very frustrating and sometimes even impossible. It may still be impossible even when re-reading the record of the sentencing. The easiest method is to prepare a judgment for each count.7 On many older judgments only one judgment was used. It is unusual to find one of these that was properly prepared.

What’s the big deal?

We can save time.

Consider the Guerrero case where an appeal could have been avoided simply by a complete record that discussed the issue of an affirmative finding. Or find out who in your office handles writs of habeas corpus that contend the judgment does not accurately reflect the defendant’s time credit and ask that person how many hours they spend on this one issue—it’s probably a lot. What’s  worse, you may end up having to start over at ground zero trying to negotiate a plea bargain or retry your case.

We can see that justice is done.8

A judgment should reflect what was agreed in a plea bargain case and what happened in a non-plea bargain case. Both sides fought for what they wanted, and the judgment should accurately reflect what was achieved by both sides.

We can reap the benefits of hard work.

This goes hand-in-hand with seeing that justice is done. Make sure the defendant serves the time he is supposed to serve and make sure that he suffers the future consequences of that conviction. Nothing less, but nothing more.

Does this really matter? Yes!

Consider the case where a defendant was tried by a jury and double enhanced. They found him guilty and the enhancements true. On appeal, the defendant raised the issue that one of his prior judgments contained an illegal sentence because it was below the minimum set by law.9 The judgment was silent as to whether the sentence was to run consecutively or concurrently and silent as to whether the sentence was a result of a plea bargain agreement. To complicate matters, by the time the issue was presented to the appellate courts, the judgment at issue was the only remaining record: There was no reporter’s record and no written plea agreement still available. The defendant argued on appeal that the judgment was void and therefore the conviction could not be used to enhance him. The Court of Criminal Appeals finally decided that the defendant could not collaterally attack that conviction through the new conviction or that he was estopped from doing so. Although the opinion ultimately favored the State, it came only after an appellate fight that lasted five years—five years during which that sentence was not a final conviction.

    Or consider the man who was indicted for two counts in one indictment.10 He was placed on probation in a single order that listed both counts. A motion to revoke his probation was filed, naming only one count. An allegation in the revocation was proven true, and the judge pronounced sentence and ended the hearing. The single judgment recited that the defendant was charged with both counts, but was silent as to which count(s) he was sentenced on. He went to prison, and prison records reflect that he is doing time on both counts. Is this right? May the State go back now and attempt to revoke his probation on the other count? Does he have one conviction or two? Can a judgment nunc pro tunc be filed to correct all of these errors? Why didn’t someone take care of this all those years ago?

Where to find help

The same statute that defines a judgment for us also tells us that the “sentence served shall be based on the information in the judgment.”11 It goes on to list nearly 30 things that are statutorily required to be in the judgment. Luckily for us, it also provides that the Office of Court Administration shall create standardized forms for our use and mandates that all courts issuing felony judgments use these forms. They are available at www.courts.state.tx.us/ oca/felonyforms/index.asp.

Keep up the good work

As a group, we prosecutors are getting much better at making sure our judgments are correct. Please do your part: Take a few extra minutes to check that all of the details are put on the record at the time of the plea or verdict and sentencing. Then take a few more minutes and ensure the written judgment properly reflects what was ordered in court. If you don’t know how to do something, ask. This little bit of extra effort will not only help the State now, but it will also save courts and prosecutors time and effort down the road. And most importantly, it will ensure that defendants get exactly what is coming to them, no more and no less.

Endnotes

1 Tex. Code Crim. Proc. art. 42.01, §1.
2 Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).
3 A defendant may be estopped from attacking the judgment if he agreed to it and has benefitted from it. Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007). However, if he does try to attack it through a writ many years after the fact, can you come up with the proof that this is what happened all those years ago?
4 See Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004), wherein the Texas Court of Criminal Appeals found a notice of appeal filed nearly two months after the initial plea hearing to be timely because the judgment was incomplete at the time of the initial hearing. All parties agreed the court would later set the amount of restitution to be paid and the notice of appeal was given within 30 days of the court setting the restitution amount.
5 Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980).
6  299 S.W.3d 487 (Tex. App.—Amarillo 2009).
7 This is the method used by the Office of Court Administration. Please read further for a discussion of their mandate and their judgment forms.
8 Tex. Code Crim. Proc. art. 2.01 states that it shall be the primary duty of all prosecuting attorneys to see that justice is done.
9 See Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007).
10 This case is still being researched and litigated. Specifics are withheld in an attempt to allow the parties to freely pursue their respective arguments.
11 Tex. Code Crim. Proc. art. 42.01, §1.