Opinion
Case No. 20050947-CA.
Filed October 5, 2006. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 041905287 The Honorable Leslie A. Lewis.
John Pace, Salt Lake City, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Thorne.
MEMORANDUM DECISION
Steven T. Hawkins appeals his sentence after pleading guilty to two third degree felonies. This is before the court on a joint motion for reversal based on the breach of Hawkins's plea agreement.
In exchange for Hawkins's guilty plea, the State agreed not to recommend prison at sentencing. However, when the sentencing hearing was held several months later, the prosecutor requested that Hawkins be sent to prison. The State concedes that this is a breach of Hawkins's plea agreement and constitutes reversible error. Both the State and Hawkins request this court to vacate the sentence and remand for resentencing in accordance withState v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203 (concluding that the proper remedy for breach of a plea agreement is specific performance or withdrawal of plea). Additionally, they request resentencing by a different judge. See State v. Hale, 2005 UT App 305, ¶ 7 n. 4 (mem.) (noting that resentencing "should take place before a different judge").
Accordingly, Hawkins's sentence is vacated and this case is remanded for reassignment to a different judge for resentencing.
Russell W. Bench, Presiding Judge, Pamela T. Greenwood, Associate Presiding Judge, and William A. Thorne Jr., Judge.