Two questions for the criminal gurus...

First, in a misdemeanor plea in which the defendant has waived a PSI, can the judge order one anyway over the objection of both counsel?

If he can, is the cost borne by the defendant or the state?

Thanks,

Lisa L. Peterson
Nolan County Attorney

For info on procedures connected with your question, check out pages 128-30 of The Perfect Plea, discussing the PSI.

As for payment of costs, generally the State may not impose a cost on a defendant absent a statute that expressly authorizes the cost. But see Tovar v. State, 777 SW2d 481, for contrary authority.

OK - I understand that the Court can order the PSI, especially in situations that are not plea agreements.

However - if the Defendant pleads guilty relying on a plea offer, and the Court steps in after that to require the PSI, doesn't that negate the plea? At that point, how is a PSI appropriate, as there is then no plea open in the case?

I know, I'm old and slow....

Lisa L. Peterson
Nolan County Attorney

The judge may want to find out more facts about the case to decide whether to follow the plea bargain.

Did the plea bargain include a promise that there would be no PSI? That would be an odd thing to bargain for, since (as you've indicated) the prosecutor doesn't have the power to do any more than ask that there be no psi.

But I don't see how the preparation of a psi could make the plea involuntary. As Ken points out, the judge could decide not to follow the plea bargain -- in which case the defendant would get to withdraw his plea. If the judge decides to give the defendant the sentence he agreed to, there's no harm -- he got what he wanted.