(dissenting) — Although I agree with the majority’s statement of the law, I disagree with the application here. In my view, ambiguity in the provisions of the Plea Agreement and the Statement of Defendant on Plea of Guilty preclude the State from filing additional charges.8 I, therefore, dissent.
The majority properly holds that “[w]henever the State elects To rescind a plea agreement, its subsequent rights are measured by law; but when it opts to specifically enforce [as it seeks to do in this case], its subsequent rights are necessarily measured by the agreement itself.’ ” Majority at 462 (quoting State v. Thomas, 79 Wn. App. 32, 37-38, 899 P.2d 1312 (1995)). Thus, I agree with the majority that the trial court erred when it concluded that Thomas prohibited the State from filing new charges when a defendant breached a plea agreement, “regardless of the language in the plea agreement or the terms agreed to by the State and a defendant, unless the State allows the defendant to with*468draw his or her guilty plea. . . .” Clerk’s Papers at 81 (emphasis added).
Nevertheless, I believe the majority errs when it purports to allow the wholesale filing of additional charges and states “[h]ere, the plea agreement, like the one in [State v.] Toliver, 187 Wis. 2d 346, 523 N.W.2d 113 (1994), is unambiguous.” Majority at 465. When read together the Plea Agreement and the Statement of Defendant on Plea of Guilty are ambiguous, and therefore not subject to specific performance as requested by the State.
A contract is not subject to specific performance “unless the precise act sought to be compelled is clearly ascertainable.” Emrich v. Connell, 105 Wn.2d 551, 558, 716 P.2d 863 (1986). See also State ex rel. Bain v. Clallam County Bd. of County Comm’rs, 77 Wn.2d 542, 546-47, 463 P.2d 617 (1970). A contract provision is ambiguous when its terms are uncertain or when its terms are capable of being understood as having more than one meaning. Martinez v. Miller Indus., Inc., 94 Wn. App 935, 944, 974 P.2d 1261 (1999). Additionally, a supposed promise may be illusory because it is so indefinite that it cannot be enforced, or because provisions contained in the promise make its performance optional or entirely discretionary on the part of the promisor. Spooner v. Reserve Life Ins. Co., 47 Wn.2d 454, 458, 287 P.2d 735 (1955). Here the performance the State seeks is not sufficiently ascertainable from the agreement to be determined and enforced by the court.9
*469The Plea Agreement provides
NO FURTHER CHARGES: The State agrees to file no further charges or sentence enhancements for this incident that are in the exclusive jurisdiction of Kitsap County based on the discovery, including but not limited to residential burglary and harassment.
Clerk’s Papers at 14.
The Plea Agreement is not incorporated fully into the Statement of Defendant on Plea of Guilty.10 Nevertheless, under the State’s specific performance theory, the defendant’s guilty plea remains in full force, and the State is free *470to file any additional charges "based on the discovery” that it chooses.11
Neither the Statement of Defendant on Plea of Guilty nor the Plea Agreement specifies what charges the State is authorized to file in the event of the defendant’s breach. No document consistently sets forth the actions that constitute a breach or the attendant consequences of such a breach.12 The plea documents do not sufficiently specify the charges the defendant could face in the event of a breach or provide sufficient notice to adequately inform the defendant’s decision to knowingly waive double jeopardy and mandatory joinder rights. Jeopardy attaches in a guilty plea proceeding when the court accepts the plea. State v. Higley, 78 Wn. App. 172, 179, 902 P.2d 659 (1995) (citing State v. Crisler, 73 Wn. App. 219, 223, 868 P.2d 204 (1994), affirmed sub nom. State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995)). See also CrR 4.3A(b) (mandatory joinder rule). Due process guarantees in our federal and state constitutions require that a guilty plea be made intelligently and voluntarily. State v. S.M., 100 Wn. App. 401, 413, 996 P.2d 1111 (2000) (citing Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). But in this case, Armstrong cannot be said to have intelligently and voluntarily waived double jeopardy and mandatory joinder, for he did not know when he entered the agreement which charges he might face in the event of his breach of the agreement.
*471Under its interpretation of the Agreement, the only potential limit on the State’s ability to file additional charges is whether support for the charge can be found in the discovery materials. Any number and combination of felony, misdemeanor, or infraction charges can find support in the police reports and witness statements provided in the typical discovery. The record does not establish that all discovery materials were before the trial court at the time the defendant entered his plea of guilty. They were, therefore, not available for review to determine the defendant’s knowledge of the scope of his liability in the event he breached the Plea Agreement.
Contrary to the trial court’s ruling below, it is possible for the State and a defendant to enter into an agreement that will allow for the filing of additional charges in the event of defendant’s breach of a plea agreement without requiring rescission of the defendant’s guilty plea. In my view, however, the provisions of the agreement before us are ambiguous and unenforceable and do not provide the State with the remedy it intended. I would reverse the interlocutory order of the trial court and remand.13
Review denied at 146 Wn.2d 1013 (2002).
To date, the State has not filed an amended information with additional charges nor has Armstrong moved to dismiss those charges. The order appealed is interlocutory. It requires the State to elect between proceeding to sentencing on the initial charge or allowing Armstrong to withdraw his plea and filing additional charges. Because it is unclear what charges may be filed, the parties have not ftilly briefed or argued the issues. Our review of the plea provisions is, necessarily, purely preliminary.
Although a general provision of the Plea Agreement, section 4, purports to relieve the State of all of its responsibilities under the plea bargain if the defendant fails to appear for sentencing, the specific provision that addresses the State’s right to file additional charges is set out in section 2. Section 2 lists three conditions precedent to the filing of additional charges, none involving failure to appear for sentencing.
DEFENDANT UNDERSTANDS BY SIGNING THIS AGREEMENT:
(2) The defendant agrees that (a) any attempt to withdraw the defendant’s guilty plea, (b) any attempt to collaterally attack any conviction entered under this cause number through personal restraint petition, habeas corpus action or any other method, or (c) any violation of the cooperation agreement (if applicable) will authorize the State to file any additional count, any greater offenses, and/or any statutory enhancements that were dismissed or not filed as part of this plea agreement and that neither double jeopardy nor mandatory joinder rules will be cause for dismissal of the new charges. The parties agree *469that any breach of this agreement by the defendant shall not be grounds for vacating any conviction or guilty plea entered under this cause number even if the State should elect to file any additional counts, any greater offenses, and I or any statutory enhancements that were previously dismissed or not filed as part of this agreement.
Clerk’s Papers at 15 (emphasis added).
(4) The defendant agrees that if any additional criminal convictions are found or if the defendant commits any new crimes or violates the conditions of release pending sentencing, or fails to appear for sentencing, the State is released from the obligations of this agreement, but that the defendant will still be bound to the guilty plea. The defendant further understands that he or she may be sentenced anew if he or she has misstated, whether intentionally or unintentionally, his or her true criminal history. The defendant further understands that the court is not bound by the recommendations in this plea agreement, and may impose any sentence permitted within the bounds of the law.
Clerk’s Papers at 15 (emphasis added).
Likewise, the relevant section of the Statement of Defendant on Plea of Guilty does not expressly allow the State to be relieved of its sentencing recommendation by the defendant’s failure to appear for sentencing. Section 5(d) of the Statement of Defendant on Plea of Guilty governs the conditions under which the State may be relieved of its duty to make its sentencing recommendation:
If I am convicted of any new crimes before sentencing, or if any additional criminal history is discovered, both the standard sentence range and the prosecuting attorney’s recommendation may increase. Even so, my plea of guilty to this charge is binding on me. I cannot change my mind if additional criminal history is discovered even though the standard sentencing range and the prosecuting attorney’s recommendation increase or a mandatory sentence of life imprisonment without the possibility of parole is required by law.
Clerk’s Papers at 7.
The Statement of Defendant on Plea of Guilty only once generally references the Plea Agreement, as follows: “The prosecuting attorney will make the following [sentencing] recommendation to the judge: as in attached Plea Agreement.” Clerk’s Papers at 8.
See supra note 9 for text of provisions.
Apparently the State interprets the Agreement to provide that the defendant’s failure to appear for sentencing, a violation of section 4, authorizes it “to file any additional count, any greater offenses, and/or any statutory enhancements that were dismissed or not filed as part of this plea agreement and that neither double jeopardy nor mandatory joinder rules will be cause for dismissal of the new charges,” as set forth in section 2. See Clerk’s Papers at 15. The State also argues that Armstrong agreed that his breach of the agreement would not be grounds for vacating any conviction or guilty plea even if the State elects to file any additional charges: the defendant “will still be bound to the guilty plea” (section 4), and “any breach of this agreement by the defendant shall not be grounds for vacating any conviction or guilty plea entered under this cause number” (section 2). Clerk’s Papers at 15. The agreement sets forth specific examples of breach by the defendant that would free the State to file additional charges in section 2, but then purports to allow the State to file additional charges if the defendant breaches the agreement in any way in section 4.
In my review, Armstrong should have been sentenced on the charges to which he has pleaded guilty. The State then would elect whether to file additional charges. And Armstrong could have moved to dismiss any additional charges. The parties would then have had a proper opportunity to brief and argue their respective positions in context, and a proper record would exist for possible review.