Lundgren, Jerry Paul
2014 Tex. Crim. App. LEXIS 912
| Tex. Crim. App. | 2014Background
- Appellant pled guilty to misdemeanor DWI under a plea bargain, 18 months of community supervision began on the judgment date, and two waivers of appeal were included in the plea.
- About a week after sentencing, Appellant was arrested again for DWI and filed a timely notice of appeal and a motion for new trial in the first case.
- The State moved to revoke supervision; the court of appeals dismissed the appeal and the mandate issued.
- Post-mandate, the trial court issued a Post Mandate Enforcement of Prior Judgment and a nunc pro tunc judgment reflecting a later start date for supervision and license suspension.
- The trial court later revoked supervision; Appellant challenged that the supervision began before the appeal could toll it, arguing the notice of appeal and motion for new trial stayed commencement.
- The Supreme Court held that a timely and effective motion for new trial tolls the start of supervision, while an ineffective notice of appeal does not; the valid motion stayed supervision until overruled by operation of law, making the original start date March 23, 2011, rather than January 7, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a timely and effective motion for new trial tolls the start of supervision. | Lundgren argues timely notice of appeal stayed supervision start. | State argues only effective waiver applies to tolling effects, not the new trial motion. | Yes; a timely, effective motion for new trial tolls start of supervision until overruled. |
| Whether an ineffective notice of appeal tolls the start of supervision. | Notice of appeal was timely but ineffective due to waiver. | Waiver renders appeal ineffective; start date remains unchanged. | No; ineffective notice tolls do not delay supervision. |
| Whether the waiver of the right to appeal forecloses relief for delaying supervision via new trial. | Waiver does not bar valid motion for new trial. | Waiver applies to appeals, not to motions for new trial. | A valid, express waiver does not waive the right to file a motion for new trial. |
| When did Appellant’s community supervision commence given a timely new-trial motion and an ineffective appeal? | New-trial tolling delays commencement until overruled; appeal was ineffective. | Original judgment date governs start of supervision. | Start of supervision remained tolled until the motion for new trial was overruled; commence March 23, 2011. |
Key Cases Cited
- Ross v. State, 523 S.W.2d 402 (Tex.Crim.App. 1975) (stay of supervision during appeal; validity of notice of appeal depends on waiver)
- Delorme v. State, 488 S.W.2d 808 (Tex.Crim.App. 1973) (nonfinality of judgments during appeal; tolling by timely notice of appeal)
- McConathy v. State, 544 S.W.2d 666 (Tex.Crim.App. 1976) (motions for new trial toll start of supervision when timely and effective)
- Jones v. State, 77 S.W.3d 819 (Tex.Crim.App. 2002) (ineffective notice of appeal deems judgment final; tolling depends on effectiveness)
- Milburn v. State, 201 S.W.3d 749 (Tex.Crim.App. 2006) (finality and nonfinality of judgments on appeal; supervision timing)
- McConnell v. State, 34 S.W.3d 27 (Tex.App.-Tyler 2000) (premise that supervision does not commence while on appeal; depends on timing of new trial)