Shortt, Bernard Winfield
PD-0597-15
| Tex. | Oct 29, 2015Background
- Shortt pleaded guilty and received deferred adjudication in 2007 with a restitution order of $9,085.
- The State subsequently sought adjudication for supervision violations; on May 31, 2013 the trial court adjudicated guilt and sentenced Shortt to 10 years in prison; the oral pronouncement and written judgment did not include restitution.
- Shortt served ~5 months, petitioned for shock probation, and on October 28, 2013 the trial court granted shock probation, suspended the sentence, and — over Shortt’s objection — imposed restitution of $9,085 (with $6,178 remaining) as a condition of community supervision.
- Shortt timely appealed the restitution component, arguing (1) the shock-probation hearing is a "criminal action" giving rise to appellate jurisdiction, and (2) imposing restitution after adjudication and punishment violated the Double Jeopardy Clause and was an abuse of discretion because restitution was not orally pronounced at adjudication.
- The Fifth Court of Appeals dismissed Shortt’s appeal for lack of jurisdiction, holding there is no statutory authority allowing an appellate court to hear appeals from orders granting shock probation.
- Shortt sought discretionary review to (a) obtain a ruling that shock-probation hearings are criminal actions under Art. 44.02 and Bautsch v. Galveston, and (b) obtain deletion of the restitution condition (alternatively seeking mandamus or habeas relief).
Issues
| Issue | Plaintiff's Argument (Shortt) | Defendant's Argument (State) | Held (Court of Appeals) |
|---|---|---|---|
| Whether an order granting shock probation (or a condition of it) is appealable as a "criminal action" under Art. 44.02 | A shock-probation hearing is a "criminal action" (Bautsch) so Art. 44.02 permits appeal; trial court certification confirmed appealability | The court below and precedent treat appeals from orders granting shock probation as outside appellate jurisdiction; statute does not confer such appellate jurisdiction | Appeal dismissed for lack of jurisdiction: article 42.12 §6 does not provide appellate-court jurisdiction to review orders granting shock probation |
| Whether imposing restitution in the shock-probation order (when restitution was not orally pronounced at adjudication) violated double jeopardy / was an abuse of discretion | Restitution was punitive, was not pronounced at adjudication, and imposing it later amounted to additional punishment (double jeopardy); restitution must be orally pronounced or included in the adjudication judgment | State conceded trial court erred in including restitution for statutory reasons but did not concede a constitutional violation | Court did not reach merits due to jurisdictional dismissal; lower court had concluded restitution could not be imposed via shock-probation order |
| Whether the appellate court should treat the filing as mandamus or habeas and decide merits | Alternatively asks this Court to treat the filing as mandamus or habeas (Houlihan, Basaldua) and grant relief deleting restitution | State did not concede mandamus/habeas remedy; argued statutory limits on appellate jurisdiction | Not addressed by the Court of Appeals; raised before the Court of Criminal Appeals on discretionary review |
| Proper remedy if restitution improper | Delete restitution from the shock-probation order so no duplicated punishment | State brief in lower court agreed trial court erred statutorily and requested deletion | Remedy proposed but not adopted by Court of Appeals (appeal dismissed) |
Key Cases Cited
- Bautsch v. Galveston, 11 S.W. 414 (Tex. Ct. App. 1889) (defines "criminal action" broadly to include proceedings prosecuted in the name of the State)
- Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979) (directing that appeals from shock-probation denials must be treated as extraordinary writs)
- Basaldua v. State, 558 S.W.2d 2 (Tex. Crim. App. 1977) (treating certain probation-condition challenges as habeas-type matters when appeal unavailable)
- Olowosuko v. State, 826 S.W.2d 940 (Tex. Crim. App. 1992) (holding no statutory right to appeal certain deferred-adjudication proceedings under prior statutory scheme)
- Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004) (restitution is part of the judgment and sentencing process)
- Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (restitution constitutes punishment)
- Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009) (restitution must be pronounced orally to be validly included in judgment)
- Perez v. State, 938 S.W.2d 761 (Tex. App. Austin 1997) (dismissing appeal from order granting shock probation for lack of jurisdiction)
- Pippin v. State, 271 S.W.3d 861 (Tex. App. Amarillo 2008) (dismissing appeal challenging conditions of shock probation where appellate jurisdiction lacking)