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People v. Tidwell

Court of Appeal of California
Jul 29, 2008
F054238 (Cal. Ct. App. Jul. 29, 2008)

Opinion

F054238

7-29-2008

THE PEOPLE, Plaintiff and Respondent, v. DAVID LEON TIDWELL, Defendant and Appellant.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Not to be Published


OPINION

THE COURT

On April 29, 2005, the district attorney filed a complaint charging Tidwell with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), maintaining a place for the purpose of using a controlled substance (Health & Saf. Code, § 11366), and possession of drug paraphernalia (Health & Saf. Code, § 11364.)

On October 18, 2005, the prosecutor orally amended the complaint to allege a prior prison term enhancement. Tidwell then pled no contest to possession of methamphetamine and admitted the enhancement. In exchange for his plea, the remaining counts would be dismissed, Tidwell would be sentenced to a suspended four-year term, and he would be placed on Proposition 36 probation.

On February 16, 2006, Tidwells defense counsel advised the court that Tidwell wanted to withdraw his plea. The court agreed to appoint substitute counsel to investigate whether to file a motion to withdraw plea on Tidwells behalf.

On February 23, 2006, the court appointed substitute counsel.

On March 27, 2006, substitute counsel advised the court that he did not find a basis for Tidwell to withdraw his plea.

On June 5, 2006, Tidwells original defense counsel filed a motion for specific enforcement of Tidwells plea agreement or alternatively to withdraw his plea.

On September 20, 2007, Tidwells first plea agreement was set aside and he entered a new agreement involving the instant case and case No. AF46574. Pursuant to this agreement, Tidwell pled no contest to vehicle theft in case No. AF46574 and the court imposed an aggregate term of two years eight months, the mitigated term of two years on his possession of methamphetamine conviction, a consecutive eight-month term on his auto theft conviction, and a stayed one-year term on the prior prison term enhancement.

Tidwells appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Tidwell has not responded to this courts invitation to submit additional briefing. However, our review of the record disclosed that the court erred when it stayed the one-year term on Tidwells prior prison term enhancement. "Pursuant to [Penal Code] section 1170.1, subdivision (d), when the court imposes a determinate sentence, the imposition of an additional term under [Penal Code] section 667.5 is mandatory unless the additional term is stricken." (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) An "order staying imposition of the prior prison term enhancement is an unauthorized sentence and is subject to correction on appeal. [Citation.]" (Ibid.)

Following independent review of the record we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is modified to strike the one-year prior prison term enhancement the court stayed. The trial court is directed to prepare an amended abstract of judgment that incorporates this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed. --------------- Notes: Before Vartabedian, Acting P.J., Levy, J., and Kane, J.


Summaries of

People v. Tidwell

Court of Appeal of California
Jul 29, 2008
F054238 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Tidwell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID LEON TIDWELL, Defendant and…

Court:Court of Appeal of California

Date published: Jul 29, 2008

Citations

F054238 (Cal. Ct. App. Jul. 29, 2008)