(concurring in part and dissenting in part).
[¶ 18.] I agree with the Court that the prosecutor failed to fully comply with the terms of the plea agreement and for that reason the sentence must be vacated and returned to the trial court for resentenc-ing. However, I dissent from that portion of the Court’s opinion that directs upon remand, resentencing is to be taken away from Judge Timm and is to it be held in front of another judge of the Third Judicial Circuit.
[¶ 19.] Herein Waldner finds no fault with the conduct of the judge at the original sentencing. The sole basis of his complaint is the conduct of the prosecutor. This Court is in agreement for it declares, “although this does not involve a question of trial court error ...” and further that “we emphasize that our inquiry is not whether or not the trial court was affected by the breach of the agreement, but whether the State’s Attorney met his obligation.”
[¶20.] The sole basis for the court’s action is its continuing misinterpretation of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) as set forth in State v. Bracht, 1997 SD 136, 573 N.W.2d 176. Santobello states in part:
The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner!].]
404 U.S. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (emphasis added).
[¶ 21.] “The language quoted above from Santobello ‘mandates nothing. ’ ” Bracht, 1997 SD 136, ¶ 20, 573 N.W.2d at 182 (Miller, C.J., dissenting) (citing United States v. Wolff, 127 F.3d 84, 87 (D.C.Cir.1997)). See also United States v. Travis, 735 F.2d 1129, 1132 (9th Cir.1984); United States v. Arnett, 628 F.2d 1162 (9th Cir.1979); United States v. Bowler, 585 F.2d 851, 856 (7th Cir.1978).
Since the inception of this Court, it has from time to time reversed a trial court for errors committed against a criminal defendant which were found to be prejudicial. Yet one must look long and hard to find a case where the remand was designated to be to another judge rather than the original trial court which committed the error. We have assumed that the trial court will correct its original error and not retaliate against the defendant who obtained the reversal from this Court. What then is the justification for continuing on with this procedure and yet automatically ordering a remand to another judge where the error was made by the prosecutor, not the trial court, and not even considered by the trial court?
The cases cited above hold that the defendant must show “unusual circumstances” or some other valid reason in order to require remand for resentenc-ing by a different judge. [U.S. v.] Sharp, 941 F.2d [811] at 817 [9th Cir.1991]; [U.S. v.] Heubel, 864 F.2d [1104] at 1113 [3d Cir.1989]. Bracht makes no claim of bias or reliance on impermissible factors by the trial court and the *194majority explicitly finds there is none. Therefore Bracht has failed to demonstrate any circumstances which require a different judge to conduct his resen-tencing.
Bracht, 1997 SD 136, ¶¶ 37-38, 573 N.W.2d at 185 (Gilbertson, J. dissenting).
[¶ 22.] The same rationale applies here. For the above reasons, I concur in part and dissent in part.