(specially concurring):
I concur in the result, but for different reasons. In Santobello the Supreme Court not only held constitutional the practice of plea bargaining but strongly approved that practice as an essential component of the administration of criminal justice to be properly administered and encouraged (404 U.S. at 260, 261, 92 S.Ct. 495). In well-considered dicta, the Supreme Court went beyond the agreement between an accused and a prosecutor and discussed the duty of the court:
“There is, of course, no absolute right to have a guilty plea accepted. Lynch v. Overholser, 369 U.S. 705, 719, [82 S.Ct. 1063, 1072, 8 L.Ed.2d 211] (1962); Fed.Rule Crim.Proc. 11. A court may reject a plea in exercise of sound judicial discretion.
“This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Emphasis added.)
404 U.S. at 262, 92 S.Ct. at 498.
I agree with the Third Circuit’s expression in Culbreath that “if the judge ultimately determines that the interest of justice would not be served by accepting the Government’s recommendation made pursuant to such agreement the defendant should be permitted to withdraw his guilty plea, particularly where, as here, there is no Government claim of prejudice or harm.” 466 F.2d at 735.
In the present case, Bouchillon apparently did not ask to withdraw his plea of guilty, but he urges that the trial court should have made certain that the defendant understood the advantage of making such a request, or should have affirmatively offered him an opportunity to withdraw his plea of guilty. Assuming that since Santobello such an affirmative duty is placed on the court when it refuses to accept the prosecutor’s recommendation, I would hold that under the tests prescribed in Stovall v. Denno, 1967, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the rule should not be applied retroactively. I therefore specially concur.