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Bailey v State

March 24, 2004
No. 2189-01

Dissenting opinion by Presiding Judge Keller
Links to other opinions in this case:
Majority opinion by Judge Meyers
Concurring opinion by Judge Cochran
Dissenting opinion by Judge Womack
Dissenting opinion by Judge Keasler

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 2189-01

HAROLD WAYNE BAILEY, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

Keller, P.J., filed a dissenting opinion.

DISSENTING OPINION

Unless a motion for new trial is filed, a defendant must file notice of appeal “within 30 days of the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order.”1 So, the time to file an appeal begins to run from one of three events: (1) imposition of sentence in open court, (2) suspension of sentence in open court, or (3) the entering of an appealable order. None of these events describe the trial court’s restitution order.

We have already held that the term “sentence” does not include the assessment of probation or the conditions of probation.2 “[I]mposition of a sentence is profoundly different from the granting of community supervision.”3 The text of Rule 26.2 recognizes the distinction by referring to sentence that is “imposed or suspended”– the suspension of sentence referring to the granting of probation. So the first category is not before us.

But neither is the second. The trial court granted probation on February 12, 2001, when appellant pled guilty. Sentence was “suspended in open court” at that time. The restitution order occurred 28 days later. Sentence was not suspended a second time by the restitution order; sentence had already been suspended. If, at the restitution hearing, the trial court had declined to impose restitution, neither appellant nor the State could claim that sentence had not been suspended at the initial hearing. And in that case, what date would start the appellate timetable? It could be that the date sentence was suspended would retroactively become the triggering date for an appeal, but if the decision were made after thirty days, an appellant would by then have lost the ability to appeal his conviction.

Moreover, an order of restitution, as with any other condition of probation, does not suspend the imposition of sentence. The granting of probation does that, not the conditions attaching to that probation.

Third, the restitution order is not otherwise an appealable order. As the Court observes, we held in Basaldua v. State4 that orders modifying probationary conditions are not appealable.5

I respectfully dissent.

KELLER, Presiding Judge

Date filed: March 24, 2004
Publish


1 TEX. R. APP. P. 26.2(a)(1).
2 Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999).
3 Id.
4 558 S.W.2d 2, 5 (Tex. Crim. App. 1977).
5 Article 11.072 of the Texas Code of Criminal Procedure also appears to be relevant to the issue before us and, in my opinion, argues against the Court’s interpretation.


This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. This file was derived from the text posted on the web site of the Texas Court of Criminal Appeals, by the automatic operation of conversion software, and may contain errors.

Baker's Legal Pages are a public service of Freelance Enterprises, Inc.
Casenotes Listing Table of Recent Opinions
Send your comments or suggestions to fei@bakers-legal-pages.com
© 2004 Lang Baker