(dissenting).
Being unable to agree with the reasoning or result reached in Division II of the majority opinion and the ultimate conclusion I respectfully dissent.
Admittedly, defendant was clearly advised and understood any plea bargain made and entered into with the county attorney was not binding upon the court. But that alone did not suffice. Trial court was further obligated to correlatively advise defendant to the effect that he could then elect to either stand on his guilty plea and accept the risk as to any sentence to be later imposed or withdraw such plea and stand trial.
In support of that position I refer to State v. Fisher, 223 N.W.2d 243, 245 (Iowa 1974), where we approvingly thus quoted § 4.1, ABA Standards Relating to The Function of the Trial Judge (Approved Draft):
“4.1 Role of the judge in plea discussions and plea agreements.
“(a) The trial judge should not be involved with plea discussions before the parties have reached an agreement other than to facilitate fulfillment of the obligation of the prosecutor and defense counsel to explore with each other the possibility of disposition without trial.
“(b) The trial judge should not accept a plea of guilty or nolo contendere without first inquiring whether there is a plea agreement and, if there is one, requiring that it be disclosed on the record.
“(c) If the plea agreement contemplates the granting of charge or sentence concessions by the trial judge, he should:
“(i) unless he then and there grants such concessions, inform the defendant as to the role of the judge with respect *517to such agreements, as provided in the following subparagraphs:
“(ii) give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant charge or sentence concessions; and
“(iii) permit withdrawal of the plea (or, if it has not yet been accepted, withdrawal of the tender of the plea) in any case in which the judge determines not to grant the charge or sentence concessions contemplated by the agreement.
“(d) The trial judge may decline to give consideration to a plea agreement until after completion of a presentence investigation or may, in accordance with ABA Standards, Pleas of Guilty, § 3.3(b), indicate his conditional concurrence prior thereto.”
Furthermore, this is the commentary to the above quoted ABA Standards:
“The second significant principle is expressed in subparagraph (iii). In effect it is that in any case in which a plea agreement contemplates concurrence by the trial judge and he decides not to concur, the defendant should be so informed and given the option of going to trial.”
Also, in Fisher, 223 N.W.2d at 246, we likewise quoted this from State v. Wolske, 280 Minn. 465, 160 N.W.2d 146, 152 (1968):
“Where disclosure of a plea agreement is made to the trial judge either before or after acceptance of the plea as recommended, it will not be difficult to determine if plea agreements have been kept, and in the event the agreement is not fulfilled by the prosecutor or not acceptable to the court, the defendant should be afforded the option of either withdrawing or reaffirming his plea, * *
Additionally, the approved Federal Rules of Criminal Procedure Amended, effective December 1, 1975, § 11(e)(4) provides:
“If the court rejects the plea agreement, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea of plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”
See 15 Crim.L.R. 3001; 17 Crim.L.R. 1071.
Clearly Judge Schultz did not grant the sentence concession embraced within the plea bargain. See ABA Standard 4.1(c)(i), quoted supra. He was therefore obligated to advise defendant regarding his elective right to stand on the guilty plea or to withdraw same. This was not done. I submit our opinion in Fisher, supra, is here applicable and dictates a reversal of the case at hand.
Therefore, I would reverse and remand with instructions (1) that the sentence from which appeal is here taken be set aside; (2) defendant be afforded meaningful opportunity to withdraw his guilty plea; and (3) for further appropriate proceedings.