Santobello error, specific performance

2001 MT 85
STATE OF MONTANA,v.
DANIEL MUNOZ,

Upon remand, does Munoz have the right to choose the remedy, either specific
performance of the agreement or the right to withdraw his guilty plea, due to the State's breach of the plea agreement /
Further, the state has failed to present one compelling reason why this choice should not rest in the hands of the defendant. Rather, the State focusses squarely and repeatedly on its preferred scenario here, that specific performance is appropriate because the
sentencing court is not bound by the State's recommendation--inferring that although the State concededly breached and may be ordered to "perform," Munoz should not be
afforded any remedy. We view this particular posture as unpersuasive in light of the
"fundamental rights" that are "flouted" by a prosecutor's breach of a plea bargain. See Santobello, 404 U.S. at 267, 92 S.Ct. at 501 (Douglas, J., concurring).
We conclude that, in light of the underlying principles of contract law, a nonbreaching defendant must be afforded the initial right to choose from available remedies where the State breaches a plea agreement. The State must therefore bear the substantial burden, as the breaching party, of demonstrating with clear and convincing evidence that the defendant's choice of remedy would result in a miscarriage of justice. Only upon such a showing may a district court, in its discretion, disallow a defendant's choice of remedy.
To the limited extent that our prior decisions in Persak and Rardon conflict with our holding here today, we overrule those cases. We hold that upon remand, Munoz should be granted his chosen remedy of withdrawal of his guilty plea.
Accordingly, we reverse and remand for further proceedings consistent with this
opinion.