(dissenting). I agree that People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), does not control the instant case. I am also of the opinion that the issue to be considered is not really whether McMiller, supra, should be extended but rather whether a prosecutor should be held to be bound by the terms of a formal plea agreement where the defendant has fulfilled his part of the bargain.
As a matter of judicial policy I believe the prosecutor’s original agreement with defendant to dismiss the Martinez charge in return for his guilty plea to the Scott’s charge should bar the instant prosecution. My conclusion rests on the interplay between two important judicial policies —enforcing the prosecutor’s end of a plea bargain and preventing a "chill” on a defendant’s right to appeal..
Plea bargains are an accepted method of disposing of criminal cases and are binding on each party. People v Reagan, 395 Mich 306, 314; 235 NW2d 581 (1975), People v Eck, 39 Mich App 176, 178; 197 NW2d 289 (1972). In Reagan the Supreme Court held binding a prosecutor’s bargain to dismiss charges if the defendant successfully passed a polygraph test. Although the defendant passed the test, the prosecutor brought charges. Regardless of the wisdom of the agreement, the nolle prosequi order placed on the record as part of the bargain represented a pledge of public faith by the prosecutor and is a binding agreement not to prosecute. 395 Mich at 317-318. I concurred in People v Shipp, 68 Mich App 452; 243 NW2d 18 (1976), lv den 397 Mich 826 (1976), which essentially held that if the prosecutor had not complied with his end of a bargain to dismiss charges, Reagan mandated that the defendant be discharged.
In short, when a prosecutor enters into an agree*56ment not to prosecute or dismiss charges, the prosecutor is bound by his promises when the defendant has fulfilled the conditions of his part of the bargain. In the instant case defendant pled guilty to one charge of robbery in return for the prosecutor’s dismissal of another robbery charge. The bargain was not and could not be conditioned on defendant foregoing his right to appeal the guilty plea. The defendant did exactly as required under the plea agreement; the prosecutor did not.
In People v Soto, 62 Mich App 370; 233 NW2d 545 (1975), the Court addressed both issues which form the basis of this dissent — enforcing a prosecutor’s agreement and the "chill” on defendant’s right to appeal if the prosecutor’s agreement is not enforced. Although concluding that the unexplained delay in the prosecutor’s filing of a dismissal of one charge until the 60-day appeal period had run on the plea-based conviction did not constitute per se error, the Court noted the "chilling” effect such deliberate prosecution practices1 might have on some defendants. The Court noted, however, that the "chilling” effect might be illusory since a prosecutor cannot renege on his bargain to dismiss charges merely because the defendant has appealed a plea-based conviction; 62 Mich App at 374. I agree there would be no "chilling” effect on defendant’s right to appeal if the prosecutor was barred from resurrecting once-dismissed charges.2 *57According to the majority in the instant case, however, a successful appeal does not constitute such a bar, therefore I must address my next argument that allowing a prosecutor to abrogate an agreement effectively "chills” a defendant’s right to appeal.
As noted by the majority it is constitutionally obnoxious for a prosecutor to dismiss one charge on condition that a defendant not appeal a conviction or plea in another case, whether overtly as in People v Harrison, 386 Mich 269; 191 NW2d 371 (1971), or by waiting to dismiss a charge until after the 60-day appeal period on the plea-based conviction has expired, People v Ledrow, 53 Mich App 511; 220 NW2d 336 (1974), People v Butler, 43 Mich App 270; 204 NW2d 325 (1972). In the instant case the prosecutor brought the defendant to trial on the Martinez charge even though the prosecutor had obtained a second guilty plea and the same sentence in the Scott’s case as he had obtained originally. In essence the defendant was. punished for exercising his right to appeal.
In Soto the Court noted that the defendant in that particular case was not deterred from appealing but that less assertive defendants might be if they feared the prosecutor could reinstate oncé dismissed charges if they appealed the plea conviction. I do not think Soto goes far enough since it restricts its analysis to whether a particular defendant was actually deterred from appealing. To allow a prosecutor to reinstate charges that were once dismissed will have a substantial impact on all future defendants who agree to a plea bargain. Defense counsel will begin counseling their clients that appealing a plea-based conviction subjects the defendant to the full array of charges that were dismissed pursuant to the bargain. Thus a class of *58timid defendants may be improperly inhibited from exercising their fundamental right to appeal. The only way to prevent such a "chilling” of the right of appeal is to impose an absolute bar to prosecution on the dismissed charges.
As the Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), provide, a prosecutor shares responsibility for ensuring the error-free taking of guilty pleas. Although we could not hold the prosecutor to this standard in the instant case, since the original plea was taken in 1973, in the future a prosecutor should have only himself to blame if a bargained-for guilty plea is found defective on appeal.
I believe the prosecutor should have been barred from resurrecting the Martinez robbery charge after defendant’s successful appeal of the initial guilty plea to the Scott’s charge. I would therefore vacate defendant’s conviction and sentence on the Martinez robbery.
See People v Harrison, People v Ledrow, People v Butler, infra.
While Soto indicates a defendant may waive an objection to prosecution on a once dismissed charge and since defendant Strickland admitted in his second Scott’s guilty plea that he knew the prosecutor could bring him to trial on the Martinez charge, the question of waiver might be raised. I do not think the defendant could in any way be said to have "waived” his "right” to hold the prosecutor to the original agreement to dismiss the Martinez charge. Waiver generally indicates the relinquishment of a known right. According to the majority’s holding, there exists no such right. Therefore I do not see how defendant can be considered to have waived a right he does not know exists.