Tharp v. State

Robert H. Dudley, Justice.

A jury convicted the appellant of driving while intoxicated, and the judge, rather than the jury, fixed the sentence. The appellant contends that the trial court erred in refusing to permit the jury to fix punishment and in rejecting a jury instruction on this issue. The argument has merit and, accordingly, we reverse and remand.

The appellant argues that he has both a constitutional and a statutory right to have a jury fix his punishment. We find that although the right asserted is not guaranteed by our constitution, it is provided by statute.

The appellant’s…