I have a defendant accused of sjf possession of controlled substance who is probation eligible, therefore probation is mandatory whether the case is disposed of by plea or trial. Defendant has refused my "generous" probation offer because he would just rather go do his time than be on probation. Defense desires an offer of sjf time, which would be fine with me if the law allowed it. I would make him such an offer if I could find an offense to plea him to that would not be a complete fabrication.

Sounds like putting him on probation would be a waste of time even if he would agree to it.

How are ya'll handling these?

We have discussed this in our office and the general consensus is that because 41.12 sec. 15 creates a statutory right for a defendant to be given community supervision it would be logical that the defendant can waive that statutory right. Similar to agreeing to consecutive sentences in a plea agreement where the cases are prosecuted in a single criminal action and they arise out of the same criminal episode. I would look at Ex Parte McJunkin 954 S.W.2d 39. I hope this sheds some light on your issue.

Note that the mandatory probation language in Art. 42.12 Section 15 only relates to a "state jail felony... that is punished under 12.35(a), Penal Code...".

On a first state jail offense, we have many times given county jail time under §12.44(a) of the Texas Penal Code. The next time through--I know, I know, I'm a pessimist--you don't have that limitation.