dissenting.
I agree with Judge Shields in her dissenting opinion in Bullock v. State (1979), Ind.App., 397 N.E.2d 310, 313-14, that permitting the prosecutor to renege on his agreement undermines the credibility and integrity of our criminal justice system. The majority here relies heavily upon the majority opinion in Bullock. Because I agree with the dissent of Judge Shields and believe Bullock was wrongly decided, I must dissent here.
Further, I believe other cases relied upon by the majority are clearly distinguishable. In Neeley v. State (1983), Ind., 457 N.E.2d 532, our supreme court held an agreement to forgo adding an habitual offender count was not violated by adding an habitual offender count to another unrelated charge. Thus, the Neeley court found no violation of the prosecutor's agreement, which is quite unlike this case where there is a clear violation.
In Rihl v. State (1980), Ind.App., 413 N.E.2d 1046, the agreement granting immunity from prosecution was made by the arresting officers. The prosecutor did not become aware of it until shortly before trial. Here, the agreement was made by the deputy prosecutor himself. Riki found, under the cireumstances of that case, that "the factors which may justify equitable enforcement of an agreement between a representative of the State and a defendant on public policy grounds simply are not present here." 413 N.E.2d at 1053. In this case, those factors are present. Bowers agreed to provide information to the state in exchange for the state's promise to dismiss if information provided by Bowers proved fruitful. Bowers fully complied with his agreement. The information he provided in fact proved fruitful. The state got the benefit of Bowers' performance of his agreement, but Bowers was rewarded by the state's repudiation of its agreement. Bowers now stands charged of charges the state agreed to dismiss. This is unfair, reprehensible, and destructive of public confidence in the legal system.
Other courts have found ways to enforce such agreements. Sometimes the decision has rested upon whether or not there was prior court approval, but enforcement of such agreements made without court approval has been achieved in some cases. See generally 21 Am.Jur.2d, Criminal Law, section 221-222 (1981). In a proper case, we should find it within our power to require a prosecuting attorney to keep his agreement with a defendant who, in reliance thereon, has fully performed his part of the agreement. This is such a case.
Therefore, I dissent.