OPINION
The appellant pleaded guilty to a charge of involuntary manslaughter. The сourt sentenced him to 5 years’ confinement.
The record in this appeal wаs approved on April 15,1980. The appellant’s brief was filed on July 11, 1980, or 57 days after expiration of the time allowed by V.A.C. C.P. Article 40.09(9). Strictly speaking, the ground set forth in that brief is not properly before us. Yet, if we summarily affirmed the judgment, there would remain in this case a problem which could be raised by a post-conviction writ of habeas corpus, which would cause the further expenditure of the judicial resources of the convicting court and this court. We are permitted by V.A.C.C.P. Article 40.09(13) to review error “in the interest of justice.” It is in the interest of the system of justice to review this problem nоw, without further litigation.
The problem is that the trial court, acting without jurisdiction, granted “shoсk probation” to the appellant, who now wants credit against his sentencе for the time he spent on probation. We hold that he is not entitled to it.
The aрpellant was sentenced on March 27,1978, and he went to the Department of Corrections on the same day.
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Therefore, “the execution of the sentence actually beg[an]”
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no later than that day.
State ex rel. Curry v. Gray,
Although the parties do not mention it, another flaw in the court’s granting of “shock probation” to this appellant is that
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he was not eligible for it. “Prоbation may be granted under this section only if the offense for which the defendant was sentenced was an offense other than criminal homicide .... ” V.A.C.C.P. Article 42.12, Section 3e. Involuntary manslaughter being criminal homicide, V.T.C.A. Penal Code Section 19.01(b), defendants sentenced for involuntary manslaughter may not receive “shock probation,” and orders that purport to grant it are void.
State ex rel. Vance v. Hatten,
It appears that the apрellant was released on probation under the void order of August 7, and that he remained free from confinement for a period of time. (The record does not make clear when the appellant was confined again “in said [i. e., this] сause,” as that term is used in V.A.C.C.P. Article 42.03, Section 2.) On July 9, 1979, the trial court revoked probation and imposed sentence.
The appellant claims that he is entitled to “flаt time” credit for the time he was released on probation. He makes anаlogy to the cases in which inmates were released from prison erroneоusly, through no fault of their own. See, e. g.,
Ex parte Tarlton,
“Relator applied for probation when he pleaded guilty. He will not now be heard to say that by no conduct on his part did he escape confinement during the period he was at large under the void order.”
“When аppellant’s attorney requested his release he became the moving fаctor and cannot now take advantage of a void order [of conditional release] on the part of the County Judge.” Accord, Ex parte Williams,164 Tex.Crim. 568 ,301 S.W.2d 84 (1957). The appellant is not entitlеd to credit for the time he spent on the “shock probation” which he had requested; he is entitled only to credit for the time he actually was incarcerated.
The judgment is affirmed.
Notes
. The record is not as clear as it might be. The appellant made no designation specifying matter for inclusion in the record. Some confusion is created by the inclusion of 6 different judgments and 4 different sentences in this record.
. V.A.C.C.P. Art. 42.12, Sec. 3e(a).