I've read "The Perfect Plea." I might have just missed it but, does the state have the right to withdraw our offer if the judge rejects the deal and sentences the defedant lower than was agreed? Can we then demand a jury trial at least for guilt/innocence?

Thanks for reading the book. I know it ain't easy.

And, as you discovered, I don't expressly answer your question. However, Chapter 10, which addresses the issues raised by a party or the judge interrupting the plea, consistently indicates the various legal options when a plea goes wrong.

The judge has the right to reject a plea agreement by not accepting the State's recommendation. Most judges reject the agreement by indicating what they intend to impose as punishment.

If the judge's punishment is more than what was recommended by the State, the defendant has an absolute right to withdraw the plea of guilty. If the judge's punishment is less than what was recommended by the State, the defendant usually does a little happy dance.

In neither case does the law provide for any action that may be taken by the State. Of course, if the punishment is higher than the State's recommendation, the State has little to complain about if the defendant accepts the higher punishment. If the punishment is lower, what would be the point of giving the State the authority to withdraw from the agreement?

The defendant could still opt to plead guilty and elect to have the judge decide punishment, which has already been shown to be less than what the State recommends.

The State is only really hurt when a prosecutor has made some concession outside of the punishment recommendation. For example, if the State agrees to reduce the charge and make a punishment recommendation and the judge goes even lower, it would seem like the State should be able to go back to the higher charge.

Bottom line: the law does not provide for a method for the State to withdraw from a plea agreement simply because the judge undercuts the plea agreement. It would certainly be the better practice for a judge to avoid such a circumstance.

Anyone seen it done otherwise?

PS. I've made a note to add a discussion on this issue in the next edition of Perfect Plea. Thanks.

I had a case where a guy got caught w/ 10 grams or so of crack in his mouth down at the jail, and had been to the pen before. Cap of 10 was the offer, up to the judge for punishment. Client pleads guilty and true, but issues of guilt/true are reserved until sentencing date. On the Sentencing date, Judge said client pleaded guilty, and he is guilty (doesn't make a specific finding on the prior that would have elevated the minimum to 5), sentenced him to 3TDC, and REMANDED HIM TO THE CUSTODY OF THE SHERIFF TO SERVE OUT HIS SENTENCE. I use bold letters here because once he is remanded, he begins serving his sentence, and the State has no right of appeal. They were represented at the bench at sentencing, if they had anything to say, they should have said it before he was remanded.

The state sent me an email a week or so later when they figured it out, saying we were being put back on the docket for resentencing. I asked them to make a written motion, citing their authority. Client probably has served most of his 3 years by now. Watch your pleas carefully, and because no one has said this yet, much like Mike Little has to say in a previous post, pick your battles carefully. You will work with that Judge continually, and it could be a pleasant experience.

Thanks for the response. That was pretty much the conclusion I reached base on chapter 10 and the book has been a lifesaver for me so far.

The Judge has a reputation for being soft and substantially undercuts our plea agreements. In fact, during the last plea proceeding, he joked with the defendant about his own experience with drugs. He ignored our agreement for probation and drug treatment and then assessed a nominal fine. My hope was that by being able to withdraw the offer, would be that after a jury trial he might be shamed into imposing a decent sentence.

About the only thing you could do is begin forcing defendants to trial. But, even then, they can elect to have judge punishment. The only other choice is the voter box.