Has anyone dealt with a refusal on a judges part to approve a jury waiver for both guilt/innocence AND sentencing?
I'm not sure I understand the question. If a judge won't approve a jury waiver, then a jury must determine the issue of guilt. If the defendant pleads guilty to the jury, then the jury must determine punishment. If the defendant pleads not guilty to the jury that the trial court forced on the parties, then the defendant still gets to elect judge or jury for punishment.
See In re State ex. rel. Tharp, 392 S.W.3d 751 (Tex. Crim. App. 2012)
He's refusing to accept his election to go to the judge for punishment?
I must be having a mind block here but the long and short of it is the defendant wants to plead guilty and he wants the judge to access punishment...but the judge does not want to do the punishment. He wants that deed on the back of 12 jurors rather than just him. Yes, the judge is refusing to accept the defendant's election to go to the judge for punishment. Art. 1.12 says that the judge must approve the election to waive a jury. Art. 37.07 2b doesn't apply because the defendant has pleaded guilty to the court.
If you don't agree to his jury trial waiver he has to plead guilty to the jury. Then he has to go to the jury for punishment.
David...but I do agree. I want him to plead guilty to the court and I have no objection to him going to the court for sentencing. It is the judge that wants no part of sentencing this guy.
A jury assesses punishment only if the defendant so elects. Otherwise it is the obligation of the judge, whether he likes that choice or obligation or not. If the judge is so reluctant, then I guess he should recuse himself from the case.
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