Jimmy Dewayne Hill v. State
05-14-01067-CR
| Tex. App. | May 18, 2015Background
- Jimmy Dewayne Hill was convicted of aggravated robbery with a deadly weapon and sentenced to 14 years on May 12, 2011.
- On July 11, 2014 Hill filed a pro se motion seeking a nunc pro tunc order to remove the deadly-weapon finding; the trial court entered a nunc pro tunc order on July 22, 2014 stating no deadly-weapon finding at revocation.
- Hill filed a pro se notice of appeal on August 15, 2014; that notice relied on the July 22, 2014 nunc pro tunc entry to attack the underlying conviction but did not directly challenge the nunc pro tunc order.
- The trial court entered a second nunc pro tunc order on November 4, 2014 correcting the July 22 order and reasserting the deadly-weapon finding; Hill did not file a new notice of appeal after that order.
- The State moved to dismiss for lack of appellate jurisdiction, arguing Hill’s notice was untimely as to the original May 12, 2011 sentencing and did not timely challenge the November 4, 2014 order.
Issues
| Issue | Hill's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the August 15, 2014 notice of appeal invokes jurisdiction to attack the May 12, 2011 conviction | Hill contends the July 22, 2014 nunc pro tunc entry allows him to challenge the underlying conviction without a new notice | The notice is untimely as to the 2011 sentencing; a nunc pro tunc cannot be used to relitigate judicial determinations | Court held the August 2014 notice is untimely to attack the 2011 sentence and does not confer jurisdiction to overturn the conviction |
| Whether the July 22, 2014 nunc pro tunc order may be used to correct a judicial (not clerical) error in the conviction | Hill treats the nunc pro tunc as correcting his judgment and back time credit issues | State: nunc pro tunc may only correct clerical errors, not judicial decisions; Hill seeks an impermissible substantive change | Court held nunc pro tunc cannot be used to alter judicial determinations; it corrects clerical errors only |
| Whether the November 4, 2014 nunc pro tunc order was appealed timely | Hill did not file a new notice after November 4 but argues his earlier filings cover subsequent orders | State: no timely notice was filed after the unfavorable November 4 order; earlier notice did not anticipate that order | Court held Hill failed to timely appeal the November 4, 2014 order and so cannot invoke appellate jurisdiction over it |
| Whether denial (or failure) to award back time credit is appealable via post-judgment motion | Hill argues he sought back time credit via nunc pro tunc motion | State: denial of back-time credit by post-judgment order is not appealable | Court held denial of a nunc pro tunc motion for back time credit is not appealable |
Key Cases Cited
- Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App.) (jurisdictional principles for appeals)
- Blanton v. State, 369 S.W.3d 894 (Tex. Crim. App.) (nunc pro tunc orders limited to clerical corrections; appealability of nunc pro tunc)
- Abbott v. State, 271 S.W.3d 694 (Tex. Crim. App.) (no rule authorizing appeal from post-judgment denial of back-time credit)
- McKinney v. State, 207 S.W.3d 366 (Tex. Crim. App.) (appeals permitted after conviction or appealable order)
- Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App.) (timeliness requirements for criminal notices of appeal)
Result: The Court granted the State's motion and dismissed the appeal for lack of jurisdiction.