Can a plea be taken in absentia for a Class B or A misdemeanor?

Look at 27.13 and 27.14. Article 27.13 requires felony guilty pleas to be made "by the defendant in person." Article 27.14(a) allows misdemeanor guilty pleas to be entered by the defendant or his counsel.

I was wondering if there was more to that statute in the way it has been interpreted. It sounds like that state cannot insist that the defendant be present, but a plea in absentia is one way a defendant can request a new trial--seems problematic that we can't protect ourselves from an appeal? And if they do not appear and put their fingerprints on the judgment, how would anyone prove later that this particular defendant was the one who was judged and sentenced (for subsequent offense enhancements or evidence to be used later, etc.)? I was surprised that the State has to consent to the Defendant's absence at a pretrial hearing, but not to a guilty plea?

The statute you are looking at just deals with the preliminary issue of entering a plea, as at an arraignment. However, if there is to be a trial resulting in possible confinement, then the defendant must be personally present. See CCP art. 33.03.

Strangely, though, he can absent at a hearing on a motion for new trial. See CCP art. 33.03. Or even at the verdict for a misdemeanor. See CCP art. 37.06.

So what would keep a defendant from pleading guilty without appearing through his attorney (through 27.14) and then being absent for the "verdict" as 37.06 allows? I'm thinking that might be barred because the judgment requirements in 42.01 require that there be fingerprints which could be done if he's not there?

I'm asking because we have been requested by defendant's attorneys to do this twice, usually for valid absences (tour in Iraq and jail out of state). But it sounds like this isn't the route to take because there's really no point--it's not valid anyway.

Is there some other solution--besides the obvious, just dismissing it?

My defense bar is constantly informing me that we are the ONLY county in the state that won't do pleas in absentia on misdemeanors. My constant response is "show me where in the CCP I can do it and we'll talk".

I have been over ruled twice by the judge (don't you love it when counsel comes in and says "I've talked to the judge about this and HE says we should do it this way... "). When that happens, I have done very short, unsupervised deferreds, figuring that leaves the smallest footprint to haunt me later.

Lisa L. Peterson
Nolan County Attorney

Wow, that is my exact situation and the defense attorney's almost exact words.

This is the second one we have done, at the request of the judge. I don't think he wants to make a habit out of it, but it still worries me to do it at all.

quote:

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Originally posted by smj:
So what would keep a defendant from pleading guilty without appearing through his attorney (through 27.14) and then being absent for the "verdict" as 37.06 allows? I'm thinking that might be barred because the judgment requirements in 42.01 require that there be fingerprints which could be done if he's not there?

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The verdict is different from the judgment. For example, if the defendant in a trial skips out in the middle of testimony, the trial can continue all the way to verdict in his absence. But he cannot be formally sentenced until he is back in custody. That is when the judgment is signed.

SMJ, the fingerprint thing always bothered me, too. I always fight people trying to plead out felonies this way, but I know it happened without my knowlege at my old gig. The fingperprint problem has been discussed a bunch by prosecutors with some of these "teleplea" ideas kicked around in the legislature the last few sessions. If your guy is in the jail, pleading via video, how do you get his prints on the judgment prepared a couple miles away in the courthouse? We are working on that here.

Note that a not guilty plea must be made in person except for class C cases. Art. 27.16.

I interpreted this to be a question about guilty pleas, not trials. Art. 33.03 appears by its placement and terms to apply to trials, not guilty pleas.

[This message was edited by JohnR on 08-23-07 at .]

I think that's the confusing part--what I would call a plea to us and what is called a plea in CCP--everyone waives arraignment so I don't even think of that requirement until trial.

Thanks for all the input--I'll probably be confused again the next time it comes up, but at least I've got a feel for it now.