Dickerson v. State

In Dickerson v. State, 864 S.W.2d 761 (Tex. App.--Houston 1st Dist. 1993, no pet.), the trial court orally pronounced a sentence of two years' imprisonment, the defendant accepted the sentence, and the defendant was removed from his position before the bench to be processed for delivery to the penitentiary. 864 S.W.2d at 763-64. At that time, the prosecutor asked the trial court, "Did you not find the enhancements true?" Id. at 764. The judge acknowledged his mistake and summoned the defendant to "come back up here" so that he could "retract" the sentence. Id. He then assessed the statutory punishment for an habitual offender, twenty-five years' imprisonment. Id. The record reflected that "not even a minute" elapsed between the initial pronouncement of the sentence and the prosecutor's inquiry regarding the enhancement finding. Id. at 763. The Dickerson majority held that the attempted resentencing was null and void. Id. The majority concluded that the situation did not involve a sentencing error, which the trial court could then correct; instead, the trial court had properly sentenced the defendant in the first instance because there was "no dispute that, without finding at least one of the two enhancement paragraphs to be true, two years was a statutorily allowable punishment." Id. at 763. The so-called error in the initial sentencing was "simply prosecutorial default" because the prosecutor had failed to object at any point "until it was too late for the court to change the sentence." Id. at 763-64.