PD-0710-18 12/12/2018
“Following this Court’s recent decision in Shortt v. State, when an appellant timely files a notice of appeal to appeal his conviction, must he file an additional notice of appeal to maintain his appeal of the conviction if the trial court later signs an order or judgment permitting ‘shock’ probation?”
After Delafuente was convicted and sentenced, he filed a notice of appeal. While his appeal was pending, he was granted shock probation; the trial court entered a second judgment. He filed a second notice of appeal more than 30 days after the grant of probation. The court of appeals dismissed his appeal for want of jurisdiction. It concluded that the second judgment rendered the first moot, and Delafuente’s second notice of appeal from the shock probation judgment was untimely.
Delafuente contends that he timely filed a notice of appeal from his conviction, and no additional notice should be required. He points out that this potential problem was mentioned but undecided by the Court in Shortt v. State when it held that a defendant may appeal an order granting shock probation. 539 S.W.3d 321 (Tex. Crim. App. 2018). In Shortt, the Court observed, “[W]e could hold that the appeal from the order granting ‘shock’ . . . is independent of the appeal from the original written judgment—a separate appeal of the order suspending the execution of the sentence, with its own appellate timetable, but subject to being consolidated with the appeal from the original written judgment.” Delafuente claims that the court of appeals erred when it declined to follow the Shortt Court’s advice. He also argues that the trial court’s entry of a separate judgment, as opposed to an order granting shock, is not dispositive.
