can a defendant agree to plead guilty but wait until after the pre-sentence investigation is completed to decide whether the judge or a jury should assess punishment?

Are you saying that you are at trial, and he decides to plead guilty? If that is the case, he must have filed a sworn election beforehand. You must proceed to sentencing based on his election. Unless you agree to do otherwise.

Ok, and this may get the ineffective assistance of counsel award of the year, but what right does he have to a PSI unless he waives his right to sentencing by a jury? A PSI is the Judge's tool.

To say the least, I say the facts would determine the outcome, so tell us whether the plea was before the court, waiving the jury, or before the jury at trial, with an election in place.

The defendant wants to make an open plea of guilty to the court then have the court order a PSI and after receiving the PSI decide whether to go to the jury or judge for punishment. The judge said he would allow this and I haven't found anything that disallows this yet. CCP 44.01(26) talks about the requirement of a PSI under 42.12 Sec 9 (a), (b), (h), and (i). But 42.12 sec 9 (g) says that unless requested by def the judge is not required to order a PSI if the punishment is to be assessed by a jury. It seems to give an opening that the judge may order a PSI if jury assesses punishment, the question is whether the def can wait until after the PSI to decide election of judge or jury.

Article 37.07, sec. 2(b), CCP:

Except as provided in Article 37.071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess
the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation
and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in
writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury,
except as provided in Article 44.29. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.

Defendant wants to make an open plea of guilty, not on trial day. The Judge must admonish him that by making such a plea he is giving up his right to have a jury trial. The defendant must agree that is what he wants to do. Then, the Judge is going to order the PSI, give it to the defense attorney, and allow the defense attorney to decide whether to IMPANEL a jury for sentencing, after his guilt has already been ...

1. Established by the judge based on the plea (and make sure you put on evidence if no plea papers are signed - especially with a no contest plea)

2. Deferred until after the PSI - obviously you see the problem with this one

This sounds like a problem waiting to be appealed! You have a right to a jury trial, refuse to waive it for the purposes of a plea, especially one this problematic.

And, just for grins, what is this guy charged with, and what is he wanting that you cannot come to terms on (Besides a dismissal and an apology letter from the Governor).

This problem should easily be addressed in the waiver which must precede the ability of the court (without a jury) to consider the defendant's plea. If despite the waiver and the plain mandatory language of 37.07 the court should agree to impanel a jury for consideration of the punishment, head for the court of appeals rather than the voir dire examination.

Or see the case from the Court of Criminal Appeals, addressing a similar issue in which a Smith County district judge allows a defendant to enter an open plea but withdraw the plea if he/she is unhappy with the sentence. Again, prosecutor can prevent this sort of nonsense by refusing to approve a jury waiver.

[This message was edited by John Bradley on 06-08-05 at .]