Smith, Fernando
559 S.W.3d 527
| Tex. Crim. App. | 2018Background
- Smith pleaded guilty to family-violence choking; trial court deferred adjudication, placed him on community supervision, later adjudicated guilt and sentenced to 5 years.
- Smith timely filed a notice of appeal from the adjudication and sentence; the appeal was docketed in the court of appeals.
- While the appeal was pending (before filing an appellate brief), Smith moved for and was granted shock probation; the trial court signed a new document labeled a "judgment" suspending execution and placing him on probation with a restitution condition.
- No new certification of right to appeal or new notice of appeal was filed from the shock-probation order; Smith instead filed a brief in the existing appeal challenging the restitution and the new judgment.
- The court of appeals dismissed for lack of jurisdiction, holding the new signed instrument was an independent judgment/order and required its own notice of appeal; Smith sought discretionary review.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a general notice of appeal from adjudication/sentencing covers a later order granting shock probation | Smith: his earlier notice was a premature notice of appeal under Rule 27.1 and should be treated as effective for the shock-probation order | State: the shock-probation grant is a separate appealable order that requires its own notice of appeal | Held: No — the earlier notice did not perfect an appeal of the later shock-probation order; a separate notice was required |
| Whether Rule 27.1(b) (premature notice) applies to an appeal of a later shock-probation order | Smith: Rule 27.1(b) makes a notice filed after guilt but before suspension effective to cover suspension later | State: Rule 27.1(b) protects premature notices as to sentencing but not as a placeholder for independent later orders | Held: Rule 27.1(b) does not apply to a subsequently entered, separate appealable order like shock probation |
| Whether the instrument signed after shock probation was a new judgment (necessitating a new notice) or simply an order suspending execution | Smith: characterization as a new judgment is immaterial if result suspends sentence | State: substance controls but the suspension is an order; appellate timetable for that order runs from signing | Held: Substance is controlling; the court treated the action as an appealable order suspending execution, separate from the original judgment |
| Whether dismissal by the court of appeals for lack of jurisdiction was proper | Smith: appeal should proceed because his existing notice was timely for both conviction/sentence and the later suspension | State: dismissal proper because no timely notice for the shock-probation order | Held: Affirmed — dismissal for lack of jurisdiction was proper absent a separate, timely notice of appeal for the shock-probation order |
Key Cases Cited
- Manrique v. United States, 137 S. Ct. 1266 (2017) (premature federal notice of appeal does not "spring forward" to cover later-amended judgment imposing restitution)
- FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991) (premature notice rules permit relation forward only in limited circumstances)
- Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993) (timing for notice of appeal depends on what is being appealed: sentencing vs. appealable order)
- Shortt v. State, 539 S.W.3d 321 (Tex. Crim. App. 2018) (recognizing appeal from order granting shock probation is independent of conviction/sentence appeal)
- Kirk v. State, 454 S.W.3d 511 (Tex. Crim. App. 2015) (premature-notice principles applied to protect appellate rights when trial court rescinds a grant of new trial)