Bench trial. Defendant plead NOT GUILTY. After both sides rested, court took case under advisement in chambers. Judge returns to courtroom where he: 1)announces that he finds there is sufficient evidence to convict; 2)State has proved its case beyond a reasonable doubt; and 3) court wants to change defendant's plea from not guilty to nolo (presumably so can give deferred). ADA at trial objects. Court apparently wants authorities. There are well delineated rules that apply where a D wants to switch from guilty or nolo to not guilty, but this is the first I've heard of a court wanting to let him switch from not guilty to nolo. I'm having a really hard time coming up with any cases. Has anyone tripped over this wire before?

Why can't the judge give deferred anyway?

Mainly because 42.12 Sec. 5 a) allows deferred only upon the court's receiving a plea of guilty or nolo - this was a full blown bench trial on a not guilty plea, complete with cops and doctors and victims and stuff like that. Of course, in one sense you are right. The defendant sure isn't going to complain, but this is a brand spanking new judge, and a nice guy, and I hate to see him start out doing off the wall stuff. The State could only appeal on grounds of an illegal sentence. It goes against the grain to have to duke it out with the defense and then see the defendant get what they apparently could have gotten with and open plea. Also this is partly academic since there is some indication the court has revised its opinion. Time will tell

Okay, the only recorded case we have been pointed to is Sosa, 830 S.W.2d 204, (1992), where, citing 42.12 5(a) that court said it was hunky dory. Apparently the CCA has not weighed in. In any event, for our little purposes, the matter is closed out.

As a baby prosecutor, I tried a case in misdemeanor court before the judge. At conclusion of the state's case, judge called up the lawyers and asked if the defendant would like to change his plea to guilty. Even then I knew it was not a cause for joy.

But, I also realized that the judge, in a court trial, has lots of room to work. I suppose the defendant can change his plea at any time before he is found guilty. What should not happen is the judge abandoning his impartial role and providing legal advice to the defendant.

And, I suppose I could have gone all nuclear, threatening a writ of prohibition, an appeal of any sentence, a grievance and a leak to the media. But, something in me said that there would be many more fights over far more important cases. So, the defendant changed his plea (reluctantly) and got deferred. As I recall, I don't think the defendant appreciated the favor.