dissenting.
The Court in this case takes another questionable step down the erroneous path it first trod in State v. Ballard, 114 Idaho 799, 761 P.2d 1151 (1988). In Ballard the Court held that a defendant must:
[S]how a ‘just’ reason for withdrawing his plea before sentencing---- [W]hen a just reason is presented, the defendant is entitled to relief unless the state makes a strong counter-showing of unfair prejudice.
114 Idaho at 804, 761 P.2d at 1156. My opinion in Ballard stated the clear reasons why such a requirement was wrong:
*291[T]he majority fails to recognize that the withdrawal of a guilty plea prior to sentencing merely allows one to exercise the constitutional rights to which every accused is guaranteed. Instead, the Court holds that one must advance a ‘just reason’ for the withdrawal. This is an unjustifiably high hurdle over which the defendant must jump.
The relevant inquiry should be whether the withdrawal of the plea is prejudicial to the prosecution. ‘Judges can and do tolerate [a] less strict standard for presentence withdrawal because the inconvenience to court and prosecution from a change of plea is usually slight compared to the interest in protecting the accused’s right to trial by jury.’ Bond, Plea Bargaining and Guilty Pleas, § 7.4 at 7-11 (1983). In Georgia, one had an absolute right to withdraw a presentence plea of guilty. Hamm v. State, 123 Ga.App. 10, 179 S.E.2d 272 (1970). Michigan courts permit withdrawal with ‘great liberality.’ People v. Price, 85 Mich.App. 57, 270 N.W.2d 707 (1978). See also McWherter v. State, 571 S.W.2d 312 (Tex.Cr.App.1978) (‘liberal practice’ prevails in Texas). As a general rule, moreover, ‘federal courts will usually permit the presentence withdrawal of a guilty plea as a matter of course.’ Bond, supra at 7-8.
114 Idaho at 803, 761 P.2d at 1155.
Today’s majority does Ballard one better. With this opinion the Court engrafts upon I.C.R. 33(c) a sliding scale approach to withdrawal of pleas based upon where in the process a particular defendant was at the time he or she wished to withdraw the plea. Such a sliding scale is nowhere contemplated by the rule. I.C.R. 33(c) states only that a plea may be withdrawn “before sentence is imposed.” Sentence was not yet imposed on Hawkins. Therefore, at most he should have been required to put forth “a just reason” for withdrawing his plea. But no. Instead, says the majority:
Under these circumstances where trial was into its third week, great deference must be given to the discretion of the district judge who has been present during all the proceedings, and has conducted an extensive inquiry prior to accepting a change of plea____ To hold otherwise and treat this case as one where the plea was simply entered ‘before sentence was imposed’ would result in district judges being extremely reluctant or refusing to accept a change of plea pursuant to a plea bargain after trial had commenced.
At 289, 787 P.2d at 275.
Engrafting such a nebulous sliding scale approach onto I.C.R. 33(c) is neither judicially appropriate nor wise. The Court is seen as holding that withdrawal of a plea depends on whether a defendant is “well aware of the evidence against him.” It seems to be not a rule of guidance, but rather an ad hoc, snap decision applicable only to the Hawkins case.
It provides no guidance to trial courts at all. How far into a trial is far enough? The State had put on seven days of its case against Hawkins — what if it had been five days into its case? Or three? Or one? What if a jury had been selected, but no evidence had been presented? What triggers this heightened “deference” to the trial court, and how much deference is “great deference”?
According to the Ballard rule, a defendant is required to give a just reason for the withdrawal of a plea, and the burden then shifts to the prosecution to show prejudice. Even though I continue to be troubled by the Ballard rule, application of Ballard in this case is preferable to what the majority does instead. The defendant here was barely eighteen at the time of trial, and came forward with a more than adequate “just reason” for wanting to withdraw his plea. He was exhausted, sick, depressed, and had not eaten properly, and he had thought he was pleading to murder in the second degree when he actually pled guilty to murder in the first degree. The psychiatrist testified that Hawkins’ emotional condition affected his decision-making ability. Upon this showing, according to Ballard, the burden shifted to the State to show that substantial prejudice to the State would result in allowing the plea to be withdrawn. This the State did *292not do. There were no assertions of witness unavailability or other substantive obstacles to the state presenting its case. Hawkins should be allowed the trial which on second thought he found preferable.
In so evaluating the situation, there is no criticism leveled at the district court. Rather, it is this Court which has the luxury of making a more detached and reflective review of the important constitutional rights at stake. The key point here is that Hawkins had not been sentenced and so should have been allowed to withdraw his plea pursuant to I.C.R. 33(c).