dissenting.
Defendant did not waive the right to pursue enforcement of the plea agreement by failing to appear on January 10, and neither the parties nor the trial court considered what transpired to be a waiver. If this were not so, the trial court would not have expressly approved of defendant’s reserving the right to appeal the issue of enforcement, when it accepted his second guilty plea on October 17. Waiver was not an issue.
The negotiated plea at issue had been set for completion on January 10. Just before that date, the new solicitor informed defendant’s *468counsel that he would not abide by it because of new information. When the case was called on January 10, the new solicitor explained that he would not oppose a continuance if defendant sought it, and stated: “But apparently he wasn’t able to do that. So —” The judge’s secretary interrupted and said: “He (defendant’s counsel) called our office and I told him I would take it off the calendar —” The court asked why and the secretary responded that “He was going to file some motions, and he said he wasn’t going to approve the change of plea today.” The court said it (the judge) had not taken the case off the calendar and asked who gave anyone permission to take it off. Without waiting for reply the court said: “Put it on the trial calendar” and the proceedings in this case were concluded for that day.
By court order, the negotiated plea was then set for June 4 for acceptance or, in the event the court rejected it, for trial. When that time arrived, defendant’s petition for declaratory judgment, seeking a ruling that the plea agreement was enforceable, was pending in superior court. As a consequence, the proceeding set for June 4 did not occur.
On July 12 the superior court dismissed the petition on the basis that the state court was competent to decide the enforceability issue in the criminal action and, if defendant was dissatisfied with the state court’s ruling, he could appeal. In its order, the superior court recited the facts, including that when the new solicitor told defendant’s counsel he would not abide by the plea agreement, counsel “stated that he would request a continuance for the change of plea and possibly seek a declaratory judgment.” The court went on: “Later, [defendant’s counsel] did call the State Court judge’s office and told a representative that he would be seeking a declaratory judgment and requested that the change of plea be taken off the calendar until the matter was resolved.” As the secretary told the state court on January 10, she took it off, albeit apparently without the court’s permission. In any event, defendant was not faulted by the trial court for relying on her word. This court should not reach down and impose the severe sanction of waiver of the very issue which defendant has all along sought to litigate.
The state court proceeding not having transpired on June 4, the court set it for October 14 after the superior court had dismissed the declaratory judgment action. It expressly noted that “[defendant . . . has expressed a desire to enter a negotiated plea” and that the case was “now ripe for resolution by either a negotiated plea, a non-negotiated plea, or trial.” It did not regard the negotiated plea as having been eliminated by defendant’s non-appearance on January 10.
The plea was insisted on by defendant at the October 14 proceeding, defendant’s counsel stating that “our position is maintained consistently that a deal is a deal and the State is bound by a deal that a *469predecessor in office has made.” He pointed out that the refusal to honor the agreement had kept defendant’s license from him for a longer period and required his seeking relief in superior court. The state gave several reasons for rejecting the agreement, none of which involved defendant’s absence on January 10.
Decided November 6, 1992 — Reconsideration denied November 25, 1992 L. Scott McLarty, for appellant. Kenneth W. Mauldin, Solicitor, for appellee.The court concluded that the state was not bound because of new information it received regarding the charge which it had agreed to nolle prosequi, and defendant sought the court’s permission to pursue an interlocutory appeal. The court was also uncertain that it had the power to compel acceptance by the state. The court refused to certify an interlocutory appeal. After further discussion with the solicitor, defendant pleaded guilty to the charges, including the charge on which a nolle prosequi was to have been entered and to which charge he had offered the agreement as a bar. However, with the court’s approval, he reserved the right to appeal the issue of the enforceability of the original plea agreement.
The appeal was perfected, and the issue is before us. The majority has noted the binding nature of plea agreements on the state. The judgment should be reversed and the case remanded for the trial court to exercise its discretion to consent to the nolle prosequi on the one charge or not (OCGA § 17-8-3) and, if it consents, to either accept or reject the plea to the other charge agreed upon, on its merits. State v. Hanson, 249 Ga. 739 (295 SE2d 297) (1982).