Under 42.12 we are aware when defendant's are able to waive a PSI and when a judge is able to waive a PSI. We realize that it can be waived when the term of a plea agreement is imprisionment. However, we are confused as to whether or not a PSI is required under the rule when the plea agreement is for probation. Can a defendant waive a PSI under a felony probation plea?

42.12 Sec. 9 says BEFORE imposition of sentence the judge SHALL order the PSI, and it MUST contain a supervision plan. I guess the real answer depends on how your judge defines SHALL and MUST. They don't all seem to define these terms the same way.

For probation, the CCP seems to require a PSI, except for a misdemeanor. However, there is case law that prevents a defendant from complaining on appeal if the judge doesn't do a PSI and defendant fails to object. That is sort of a waiver. Of course, you could go even further and have the defendant affirmatively waive the PSI before sentencing. After all, a defendant can theoretically waive anything except a jury trial in a death penalty case.

Thanks. Our plea recommendations contain the waiver language.

In light of the statement "the defendant can waive anything except jury trial in capital case," can a defendant waive mandatory probation on a state jail first offense drug charge?

We have a case where a visting judge allowed a defendant to waive mandatory probation and sentenced defendant to state jail time; however, the actual sitting judge refuses to sign the judgment without actual caselaw to prove this is possible. The visiting judge is not scheduled to come back so we cannot hold judgment for his return.

A defendant can't waive the conditions necessary to be sentenced to a particular punishment. Those are not rights he holds; they are specific ranges set by the Legislature. When I said a defendant can waive anything, I meant he could waive the procedural protections accorded him.

Now, that doesn't mean the sentence is necessarily illegal. Over the last couple of years, the Court of Criminal Appeals has developed a doctrine that prevents both the State and Defendant from challenging what might look like an illegal sentence. Those cases, however, have focused on illegal probations, which the CCA does not consider "sentences", as they involve the suspension of the literal sentence. But, those cases don't speak in terms of "waiver", really. It is more of an estoppel theory: you asked for it or didn't complain when you had a chance, and you got the benefit of the probation, so you can't complain, even at the point of revocation.

There has been a little bit of development in the area of direct sentences, though. A fairly recent court of appeals case prevented a defendant from complaining about DWI sentence that did not include a fine, although the law required one. Again, it was a sort of estoppel theory.

On the other hand, there are other cases out there that declare such sentences void. The word "void" is code for fundamental error, which is pretty rare these days.

I think there is actually a case before the CCA this term that gives them a chance to re-examine this notion of void sentences. I can't imagine it will disappear in cases in which the defendant is sentenced beyond the punishment range (e.g., 20 years in prison for a 3rd degree felony).

Of course, the defendant might also later raise the issue of ineffective assistance. And, for everyone involved, there should also be the ethical issue of whether you can knowingly argue for or impose a sentence that violates the law, even if everyone agrees.

There are ways around an automatice SJF probation. You can impose county jail time under section 12.44. You could prosecute the offense as an attempt, making it a Class A misdemeanor. You could have the defendant accept a charge of possession with intent to deliver, which is not subject to the automatic probation requirement.

Given the current state of proposed legislation regarding probation in the Legislature, we might all be wondering exactly how far we can go to avoid a sentence required by law that does not really fit the facts or the desires of the parties. This is what happens when the Leg decides it knows best how to impose the details of sentencing, rather than the judge.