dissenting.
I agree with the majority that we cannot rewrite the contract. Nevertheless, we are authorized to construe it. Applying the cardinal rule of construction, to ascertain the intent of the parties, Kruse v. Todd, 260 Ga. 63, 67 (1) (389 SE2d 488) (1990), and from a review of the contract as a whole, it is evident the parties intended that $5,000 of the total fee be reserved for the trial before a jury and appeal. Neither occurred, and, accordingly, counsel should be required to refund $5,000, so that their total fee would be $10,000 plus $2,500 in *824expenses. This construction of the contract is reasonable in light of the considerable reduction of the contemplated use of counsel’s time. I say this recognizing that appointed counsel should not be encouraged, nor permitted, to accept less than the amount to which they are entitled in return for a favorable plea recommendation from the state, and certainly prosecutors may not condition a plea on this basis.
Decided February 21, 1991. Straughan & Straughan, Mark W. Straughan, pro se. Ralph M. Walke, District Attorney, Peter F. Larsen, Assistant District Attorney, for appellee. Joe W. Roland, amicus curiae.