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MOORE v. STATE1/30/1998
failed to carry out the plea agreement and in effect ordered a sentence less favorable to him than the sentence contemplated by the plea agreement. The trial court denied the appellant's motion to withdraw his guilty plea in the following order:
"On September 10, 1997, the Court met with the attorney for the defendant and the assistant district attorney responsible for the case. After discussion, the Court denies the motion of the defendant to reconsider the sentence and also denies the motion to withdraw his guilty plea. The defendant received the four-year sentence that he agreed to."
(C. 16.)
While the sentence ordered by the trial court is within the range of punishment allowed by law and, considering the facts of the case, would appear to be appropriate and reasonable, we must agree with the appellant that the trial court failed to sentence him in accordance with the terms of the plea agreement.
"` he trial court is not bound to accept an agreement between the defense and the prosecution.' Ex parte Yarber, 437 So.2d 1330, 1336 (Ala. 1983). However, "` hen the trial judge decides not to carry out an agreement reached between the prosecutor and defense counsel, the accused must be afforded the opportunity to withdraw his or her guilty plea on motion promptly made.'" Bland v. State, 565 So.2d 1240, 1243 (Ala. Cr. App. 1990), quoting Ex parte Otinger, 493 So.2d 1362, 1364 (Ala. 1986)."
Bagley v. State, 681 So.2d 262, 265 (Ala. Cr. App. 1995). See also Rule 14.3 (c)(2)(iv), Ala. R. Crim. P.
Because the trial court effectively rejected the plea agreement in this case, the appellant should have been afforded the opportunity to withdraw his guilty plea. Thus, the trial court erred in denying the appellant's motion to withdraw his guilty plea. Taylor v. State, 677 So.2d 1284 (Ala. Cr. App. 1996); Clark v. State, 655 So.2d 50 (Ala. Cr. App. 1995); and English v. State, 56 Ala. App. 704, 325 So.2d 211 (1975), cert. denied, 295 Ala. 401, 325 So.2d 216 (1976).
Accordingly, the judgment of the trial court is reversed and this cause is remanded for the appellant to have the opportunity to withdraw his guilty plea.
REVERSED AND REMANDED.
All the Judges concur.
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