Bailey v. State (2004)
In Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004), the defendant pleaded guilty on February 12, whereupon the trial court adjudged him guilty of the charged offense, assessed punishment at five years' imprisonment, suspended imposition of sentence, and ordered general conditions of probation. 160 S.W.3d at 12.
The court then reset the case for a hearing on March 12 to consider the State's request for restitution as a further condition of probation. Id.
The record reflected that in pleading guilty, the defendant had reserved the right to appeal any restitution order. Id.
After hearing evidence at the March 12 hearing, the court ordered the defendant to pay restitution in the amount of $ 49,000. Id.
The defendant filed his notice of appeal on April 4. Id. The court of appeals dismissed the appeal because the notice of appeal had been filed more than thirty days after sentence was suspended in open court. Id. at 13.
The court of criminal appeals concluded, however, that "in the unique facts of this case, the parties considered the sentencing to be incomplete until the amount of restitution, if any, was set." Id. at 16.
Thus, for the purposes of rule 26.2(a), sentence had not been suspended in open court until the last condition of probation was decided and the notice of appeal was timely. Id.
In Bailey v. State, the appellant pled guilty and was sentenced by the trial court who then proceeded to suspend the sentence.
However, the trial court set another hearing date for one month later "to consider the State's request for restitution as a further condition of probation." Bailey, 160 S.W.3d at 12 .
After the restitution hearing, the trial court ordered that the conditions of the appellant's probation be amended to include restitution payments and signed a restitution order to that effect. Bailey filed a notice of appeal stating that "the Defendant desires to appeal the JUDGMENT and SENTENCE in the above cause, in addition to the Court's appealable ORDERS concerning restitution and probationary conditions." Id.
The Court of Criminal Appeals acknowledged that Bailey could not have appealed a decision granting restitution until the restitution order was entered and, because of the unique facts of the case, determined that sentence was not imposed within the meaning of Texas Rule of Appellate Procedure 26.2(a)(1) until the day the last condition of probation was decided. Id. at 16.
However, the starting point for calculating the timeliness of the notice of appeal is context dependent. Rodarte v. State, 860 S.W.2d 108, 109 (Tex.Crim.App. 1993).
In the "ordinary" appellate context, where the defendant appeals a judgment of conviction, the thirty days begin to run on the day sentence is imposed or suspended in open court. Id. When some other action of the trial court is appealed, the appellate timetable begins with the signing of the particular order. Id.
In Bailey, the Court of Criminal Appeals made such a distinction and remanded the cause only for a hearing on the merits of Bailey's challenge to the restitution order, even though Bailey also desired to appeal the judgment and sentence. Bailey, 160 S.W.3d at 16.