(dissenting):
Defendant pleaded guilty to attempted sexual abuse of a child, a third degree felony. The court accepted the plea but held it “in abeyance” on condition that defendant comply with certain conditions. However, as explained by the main opinion, the court had no authority to hold the plea in abeyance since the case involves “a sexual offense against a victim who is under the age of 14.” Utah Code Ann. § 77-2a-3(7) (1995). Upon learning the plea could not be held in abeyance, the court acted on its own motion and set the plea aside. In so doing, the court erred.
The procedure to be employed in the disposition of guilty pleas is governed by Rule 11(h) of the Utah Rules of Criminal Procedure, which provides as follows:
(1) The judge shall not participate in plea discussions prior to any plea agreement being made by the prosecuting attorney.
(2) When a tentative plea agreement has been reached, the judge ... may then indicate to the prosecuting attorney and defense counsel whether the proposed disposition will be approved.
(3) If the judge then decides that final disposition should not be in conformity with the plea agreement, the judge shall advise the defendant and then call upon the defendant to either affirm or withdraw the plea.
Utah R. Crim. P. 11(h) (emphasis added).
Therefore, when the court learned that “abeyance” was not an option in this case, it should have called upon defendant either to affirm his plea to a third degree felony or to withdraw his plea and proceed to trial. The court had no authority, on its own motion and without defendant’s consent, to set aside the plea. To hold otherwise is tantamount to authorizing the court to participate in the plea discussions, which is expressly prohibited by Rule 11(h)(1).
Even if defendant had violated the terms of a valid plea in abeyance, he would be subject to being sentenced only on the third degree felony. Utah law provides that if “the court finds that the defendant has failed to substantially comply with any term or condition of the plea in abeyance agreement, it may terminate the agreement and enter judgment of conviction and impose sentence against the defendant for the offense to which the original plea was entered.” Utah Code Ann. § 77-2a-4(l) (1995) (emphasis added).
Thus, unless he withdrew his plea, defendant could not be sentenced to anything greater than the third degree felony. This is precisely what the Utah Supreme Court held to be the proper procedure in State v. Kay, 717 P.2d 1294 (Utah 1986), the case so extensively quoted by the main opinion. The main opinion cites Kay and purports to follow it but, in fact, ignores the conclusion:
This case is remanded. Kay may either withdraw the guilty pleas that were given *1029as part of the aborted plea agreement and enter new pleas or he may choose to stand on his guilty pleas and proceed to sentencing under the provisions of section 76-3-207 with no guarantee as to sentence.
Id. at 1307 (emphasis added).
The decision as to whether or not to withdraw the guilty plea is therefore left not with the court, but with the defendant. This paramount principle of Kay is consistent with how other jurisdictions have treated the question. See, e.g., Kolkman v. State, 857 P.2d 1202, 1209 (Alaska.Ct.App.1993) (holding plea agreement could not be honored because it did not include mandatory sentence, thus “requir[ing] that the defendant be given the opportunity to withdraw or affirm the original plea of guilty.”); State v. Cooper, 166 Ariz. 126, 800 P.2d 992, 997 (Ct.App.1990) (“If the court rejects the proposed sentence, the accused may either withdraw from the plea or agree to be sentenced within the legal limits on the charge.... The trial court may not, however, sua sponte, vacate the acceptance of a guilty plea and set the case for trial.” (citation omitted)); State v. Efford, 596 So.2d 788, 789 (Fla.Dist.Ct.App.1992) (per curiam) (holding the defendant was entitled to withdraw guilty plea where plea agreement called for two years probation but minimum mandatory sentence required three years imprisonment); see also 2 Charles E. Torcia, Wharton’s Criminal Procedure § 312, at 417-18 (13th ed. 1990 & Supp. 1995).
In People v. Jackson, 121 Cal.App.3d 862, 176 Cal.Rptr. 166 (1981), the prosecution agreed to drop first degree murder charges in exchange for the defendant’s guilty plea to two counts of second degree murder. The trial court sentenced the defendant consistent with the plea recommendation and ordered the defendant to serve nine years on the murder charges. The plea was based on a statute that had been repealed and substituted with a statute making the minimum sentence fifteen years to life. Id., 176 Cal.Rptr. at 168-69. The California Court of Appeals held that when the trial court learned that the agreed upon sentence was illegal, defendant could demand the “benefit of his bargain” by choosing to be sentenced according to the valid, albeit higher, penalty of fifteen years to life, or, alternatively, he could withdraw his guilty plea and take his chances at trial. Id. at 170. This holding fully comports with the holding in Kay.
Based on our rules, the statutory scheme, and Kay, I would therefore reverse and give defendant the benefit of his bargain with the State. Although I would not reach the constitutional issue framed by the main opinion, I do not agree with its analysis. I am particularly bothered with the conclusion that defendant was not prejudiced by the trial court’s setting aside of his original plea.
The “procedural prejudice” analysis proposed by the main opinion might well be the standard for determining double jeopardy claims where the defendant withdraws the guilty plea. But in this case it was the court, and not defendant, that withdrew the plea. Where the court withdraws the plea without any input from the defendant, the focus of any prejudice discussion should be on the severity of the respective sentences. See State v. De Nistor, 143 Ariz. 407, 694 P.2d 237, 242 (1985) (holding that double jeopardy not violated when the defendant withdraws plea but is violated when court, sua sponte, vacates acceptance of the plea).
Defendant negotiated with the State and agreed to plead guilty to a third degree felony. The longest prison sentence he could have been subjected to for a third degree felony was an indeterminate term of up to five years. After the court set aside the plea, defendant went through a preliminary hearing and was bound over to stand trial for three first degree felonies. Ultimately, he entered a conditional guilty plea to the charge of aggravated sexual abuse of a child, a first degree felony. He was then sentenced to the maximum level available under the minimum mandatory sentencing scheme — nine years to life at the Utah State Prison — with the judge recommending “that defendant serve full time.” I believe defendant was clearly prejudiced when the court, on its own motion, set aside defendant’s plea to the third degree felony.
I therefore dissent.