Under Stone v. State, 919 SW2d 424 (Tx.Cr.App. 1996), which, to my knowledge, is still good law, allows a defendant to plead nolo contendere, and a stipulation covering each and every element of the offense is sufficient to support that plea, even if the defendant doesn't agree with the veracity of the same.

If this is still good law, can a judge reject a plea of nolo contendere if the defendant will not admit his guilt in Court? Doesn't that kind of negate the effect of using a nolo plea?

Sounds like you could use a copy of The Perfect Plea. In it, there is a discussion of guilty v. no contest pleas.

Yes, a judge may reject a plea bargain that includes a nolo plea. For that matter, he can reject a plea with a guilty plea. The point is that a judge retains the discretion to approve or disapprove a negotiated plea.

If a defendant, on the other hand, waives his right to a jury trial and pleads no contest without any agreement on punishment, then the judge no longer has the option of rejecting the plea.

Of course, upon hearing the evidence, the judge may decide that the evidence supports the innocence of the defendant. In such a case, he has a duty to consider whether to acquit the defendant.

If the defendant entered the same sort of plea before a jury, the jury would be instructed to find the defendant guilty. However, if evidence of innocence arose during the trial, the defendant could ask that his plea be changed to not guilty. Absent that request, the judge doesn't have to alter the jury charge.

A revised version of The Perfect Plea will be available in the fall. I believe the new version will go out to all prosecutors as part of a grant approved by the Court of Criminal Appeals. Meanwhile, there will be a new part of the Baby Prosecutor School in July that talks about the Guilty Plea. (I am retiring from the Predicate Bowl to pick up the Guilty Plea, but Dan Bradley will carry on with the Predicate Bowl.)

I have the book - I have read it, and I specifically looked up the cases cited there regarding nolo pleas.

A nolo plea doesn't relieve the defendant of admitting his guilt in counselling, etc.

But I assume Stoneis still good law.

I agree - a judge may reject a plea for any reason. I have never questioned a judge's authority to do so. What I question is his forced admission of guilt during a nolo plea. As the Court in Stone said:

"While the legal effect of a plea of nolo contendere is the same as a plea of guilty, the defensive posture of the accused - "I will not contest the accusation" - is slightly different ferom the stance of the guilty pleading accused- "I admit my guilt of the accusation". Consistent with that nice distinction our appellants, apparently unwilling to confess their guilt, made it known to the trial court that they did not contest the testimony they stipulated under oath "the witnesses" the State could produce would give in open court. That procedure, when properly founded in complaince with Article 1.15 V.A.C.C.P provides evidence supporting a resultant conviction" (914 SW2d 426).

The Court further allowed:

"If a defendant who pleads nolo contendere were required to concede the veracity of the stipulated testimony, every stipulation of evidence would become a judicial confession. This would destroy any benefit a defendant may realize from pleading nolo0 contendere rather than guilty, and blur any significant distinction between the two methods of presenting evidence on a plea of guilty or nolo contendere" (id at 427)

I can see why a judge would reject a nolo plea in certain circumstances. I have even required a judicial confession before I would agree to a nolo plea as part of a plea bargain. For some defendants, however, there are few, if any, collateral consequences to a nolo plea. It is a comfort to them and to their attorney.

My point is that, absent the legislature saying otherwise, a judge should either accept a plea and stipulation on a nolo plea. If he doesn't like them - just reject them. But making a defendant admit his guilt in a nolo plea is contra to Stone.

Your comments are well taken. I must admit I have a bias against the nolo plea. I think it is bad policy to have it even exist. Look, the judgment is either guilty or not guilty. So, why shouldn't the defendant be limited to picking one or the other?

A no contest plea is almost always misunderstood by a defendant as a dodge on ever admitting guilt. The legal fiction was created to let a defendant avoid civil consequences. But it has become a tool for the reluctant defendant to get squeezed into resolving his criminal case.

So, our policy is we don't negotiate cases with a no contest plea. It really has reduced the friction that comes from those cases. Yes, sometimes it means we have a trial, but mostly it means the defendant has to pony up and admit guilt.

JB -

Thanks for your input. I agree that nolo pleas can be fraught with danger, especially in sex cases, family violence, and other death or injury cases. I can see why you don't use them.

I guess my main gripe is having a judge admonish a defendant incorrectly about the nature and consequences of a plea.

We all make mistakes..............