If a judge busts a plea agreement, the defendant may withdraw his plea. Can the state do the same? And does anyone have a case standing for that proposition?

There really isn't any formal mechanism for letting the State withdraw from a plea agreement. If the Judge sentences a defendant above the agreement, the State shouldn't be unhappy but the Defendant has the right to withdraw from the plea. If the Judge sentences a defendant below the agreement, the State will be unhappy, but the Defendant has no right to withdraw from the plea.

The procedures for letting a defendant withdraw from a plea agreement arise from ideas of fundamental fairness due the Defendant. These concepts arise from the Due Process Clause of the US Constitution. As you know, courts don't include the State as a rightholder in the Due Process Clause.

But what do you think would be accomplished by letting the State withdraw from the plea agreement? The Defendant still controls who decides punishment. Even if the Defendant was tried by a jury, he could still go back to the Judge for punishment.

Of course, going back to a jury trial may be an important right for the State. If the State reduced the charge so that the punishment range was lower or made the Defendant eligible for deferred adjudication, the State might want to withdraw that availability. But, other than appealing to the sense of fair play in your judge, there's not much you can do.

Of course, there is always the voting booth.

The court currently considers these things on a contract basis. Ramirez, 89 S.W.3d at 226 fn. 5. I haven't seen anyone try it, but maybe the State has a clear right to enforce the contract as drafted and agreed between the parties. Once accepted by the court, the parties would seem to have a vested right to enforcement of their agreement. Obviously the defendant will not want specific performance, but the courts say it is a bilateral agreement, so why shouldn't the State be able to enforce the penalty agreed to by both parties. That art. 26.13(a) says "the recommendation of the prosecuting attorney as to punishment is not binding on the court" is limited by the following language: "Prior to accepting a plea of guilty". This certainly implies that once the plea is accepted, the recommendation is binding. You obviously will not win any favor with the court, but maybe a bargain is sometimes worth fighting for, depending on how much change the court makes. If mandamus is available to one party to enforce the agreement, it should be equally available to the other. See Thi Van Le, 700 S.W.2d at 775.

[This message was edited by Martin Peterson on 04-08-03 at .]

Just because it is completely relevant to today's proposed hearing on my client, see:

Dickerson 864 S.W.2d 761
and
Whitehead 908 S.W.2d 68

I suppose that they say it is important HOW the plea is busted and WHEN the State objects. If the State sits silent, there could be a problem (for the State).