(dissenting).
As I often see in this Court, critical facts have been omitted in the majority opinion which require me to write specially. Legal authorities not furnished by the briefs, nor discussed by the majority opinion, must attend the omitted facts. Weighing these authorities creates a different result and, therefore, I respectfully dissent.
Appellant is a bachelor rancher, living in a remote area, to whom transportation for food, medication, parts and ranch supplies is a vital necessity. To lose a work permit, in addition to his driver’s license, is a very severe penalty. By themselves, these facts might well be simply a matter of sympathy, of little legal weight.
Add, however, the uncontested fact that he entered a plea of guilty before a law-trained magistrate in magistrate court of the circuit court of this State. Having been previously convicted of DWI, he was apparently quite reluctant to enter a plea to a second-offense DWI. Pursuant to a plea bargain, he entered a guilty plea to a first-offense DWI, in return for which the second-offense charge was dismissed. The magistrate required him to surrender his driver’s license for thirty days, issued him a work permit for that period, ordered his attendance at weekly Alcoholics Anonymous meetings for an extended time, and sentenced him to serve thirty days in jail, suspended upon his payment of the fine and his compliance with the court order.
Consider now the Department of Commerce and Regulation of this State. It suspended his driver’s license not once, but twice! The Department initially revoked his license for a year, on May 19, 1986, after receiving notice that appellant had refused to take a blood-alcohol test per SDCL 32-23-11. As appellant did not, apparently, contest this, there is little we can do. He did not use the administrative avenues open to him. The second suspension, again for a full year, was made by the Department after appellant pled guilty before the magistrate, and ran from the date of his conviction, August 26, 1986. This suspension was predicated on the fact that appellant was convicted of DWI twice in the statutory period set out in SDCL 32-23-4.
The Department, in this second suspension, relied on SDCL 32-12-52.1, which authorizes it to override trial courts which impose more lenient sentences than those required by other DWI statutes. It later refused to consider appellant’s application for a limited license pursuant to ARSD 61:19:01:02, which categorically excludes from consideration for such licenses all applicants convicted of DWI or violation of the implied consent statute within five years previous to a current test refusal.
In this case, we are treated to inconsistent and discordant positions of the State, through the State’s Attorney, offering appellant a lenient sentence, which was approved by the magistrate, a sentence appropriate to a first-offense DWI; but, thereafter, the Department, per SDCL 32-*38912-52.1, then nullified the effect of the court’s sentence and imposed its own, more severe, penalty. One instrument of the State would appear to be totally agreeable with the plea bargain, whereas another agency of the State takes a totally antithetical posture to the first position.
I do not dismiss, out-of-hand, the plea-bargain issue. Appellant had bargaining chips. The State, in securing his guilty plea, saved itself the time and trouble of a trial. This is not insufficient consideration for a plea bargain. See generally Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The United States Supreme Court, in Santobello, had this to say about plea bargaining, after analyzing the benefits to governments:
This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433.
This analysis was recently summarized in United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.1987): “Contractual principles apply insofar as they are relevant in determining what the government ‘owes’ the defendant. If the defendant lives up to his end of the bargain, the government is bound to its promises.” (Footnotes omitted.) In State v. Lohnes, 344 N.W.2d 686, 688 (S.D.1984), this Court applied the Santobello rule in invalidating a conviction grounded on a defendant’s entering a guilty plea based on a misunderstanding. This Court hinged its decision on the defendant’s expectations. 344 N.W.2d at 689. The fundamental concept is that we must look to the totality of the circumstances to determine whether a guilty plea was voluntarily and knowingly entered. State v. Bolger, 332 N.W.2d 718, 720 n. 2 (S.D.1983) (citing Watkins v. Solem, 571 F.2d 435, 437 (8th Cir.1978)). That the breach of covenant was inadvertent is irrelevant. Santobello, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433.
Looking at these facts, appellant was misled. The State’s Attorney and magistrate lived up to their ends of the bargain, but the Department, an arm of the same sovereign, the State of South Dakota, reduced the plea bargain to a nullity. The State, through the Department, took back what it had offered him through the State’s Attorney and ratified by the magistrate. Obviously, it is a manifest injustice when a defendant enters into an agreement and the sovereign reneges on the agreement. As far as I am concerned, the sovereign is the sovereign. The sovereign cannot do business this way in our courts employing administrative action to controvert its given word and end up with any degree of honor. We cannot have dishonorable government. We cannot have reneging on plea bargains. This is the teaching of the United States Supreme Court in Santobel-lo. Having secured this rancher’s plea of guilty, the State of South Dakota proceeded to break its word. An old rancher just can’t figure this out and neither can I. Our past cases have indicated that there is a separation between the judicial proceedings and administrative proceedings. See In re Malone, 387 N.W.2d 547 (S.D.1986); In re Mehrer, 273 N.W.2d 194 (S.D.1979). These cases are not convincing in this context. The Mehrer case involved the allegation that a DWI conviction and punishment precluded separate punishment under the implied consent law. Malone dealt with an implied consent penalty inflicted where the defendant was not charged with a second-offense DWI, but there was no plea bargain involved. Here, we are looking at a subsequent punishment for a second DWI, where the second DWI conviction is infirm. The State’s Attorney and magistrate gave appeilant what they had no right to offer, per SDCL 32-23-3. The State in its plea bargain, in effect, offered “nothing.” However, appellant gave up a jury trial. This rancher believes that he has been dishonorably treated by the Court System be*390cause of the plea bargain which he honestly entered into, whereby he was to receive only a first offense DWI and a work permit to drive. I well can understand why this rancher cannot understand why a plea bargain (in the old days it was a handshake) is not being honored by the State of South Dakota as the result of an agency in Pierre shredding the import of the plea bargain. Furthermore, in front of this rancher, a circuit court judge told this rancher that he met all of the requirements necessary to entitle him to a restricted permit. The circuit court judge went further and told the rancher and his lawyer that the government agency was relying on an outdated regulation. This is all found in the record of the proceedings below. If this was not enough to build up in the mind of this rancher that he was entitled to make a plea bargain and obtain a driving permit for work, the circuit court judge criticized any blanket denial of a restricted permit by the government agency pursuant to its regulations and expressed that, in the court’s opinion, the rancher was entitled to a work permit under the circumstances. After all of this psychological buildup, a spark from the gavel struck him mightily, for he was told that, even though the circuit judge harbored all of these beliefs and feelings, that he, the circuit court judge, did not have the authority to grant the rancher’s application for a restricted license. There is privity between government officials, in many circumstances. Mehrer, 273 N.W.2d at 197-99 (Zastrow, J., and Morgan, J., concurring specially); see generally People v. Staten, 158 Ill.App.3d 971, 110 Ill.Dec. 761, 511 N.E.2d 938 (1987). As the guilty plea was secured through misrepresentation, however innocent, the conviction cannot stand. It may well be that there is little benefit to appellant here, as he may well be convicted again on remand, but his guilty plea should have been set aside, even after sentencing, per SDCL 23A-27-11. While this matter was not argued on appeal, the right to a fair trial is a constitutional issue, S.D.Const, art. VI, § 7, raisa-ble by the court, sua sponte. Twice, most recently, this Court has, sua sponte, raised important constitutional issues, so there is precedent for my writing. See State v. Jones, 406 N.W.2d 366, 367-68 (S.D.1987); Bayer v. Johnson, 349 N.W.2d 447, 449-50 (S.D.1984).
This Court has held that subsequent action by a duly authorized agency, a parole board, which may affect a sentence’s duration, is sufficient to destroy a plea bargain where that action could disappoint a defendant’s reasonable expectations. Lohnes, 344 N.W.2d at 689. While the subsequent State action contemplated here, the Department’s denial of a limited license, is not an integral part of the sentence as was the case in Lohnes, this only aggravates the unfairness. Here, appellant received, on the surface, what he asked for, but was later ambushed by the Department. In Lohnes, at least the defendant was forewarned. In Santobello, the United States Supreme Court remanded the case to the state court, as the state court was better situated to decide the appropriate remedy, either:
a) Specific performance of the plea agreement, or
b) allowing the defendant to withdraw his plea.
Santobello, 404 U.S. at 262-63, 92 S.Ct. at 499, 30 L.Ed.2d at 433. See also ABA Standards for Criminal Justice 14-2.1(b) (2d ed. 1980), and 2 Wharton’s Criminal Procedure § 340 (C.E. Torcía 12th ed. 19J5), for withdrawal of plea where there has been a manifest injustice. Here, the plea bargain was itself so lacking in legal foundation that it cannot be enforced. It poisons the system of justice. However, neither can the conviction, the sentence, and the second Departmental license revocation stand, all of which stemmed from that tainted plea bargain. Nonetheless, this neither affects the initial revocation by the Department nor the later denial of the limited license because this Court has historically recognized the separation of administrative agencies and courts power on revocation of license. See Malone, 387 N.W.2d 547; Mehrer, 273 N.W.2d 194.
Long ago, this Court held in an illegal contract case that “ ‘the doctrine of ultra vires does not absolve municipal corpora*391tions from the principles of common honesty.’ ” Slagle v. Elk Point Independent Consol. Sch. Dist., 40 S.D. 73, 78, 166 N.W. 234, 235 (1918) (citation omitted). The same should apply here. The State cannot secure a guilty plea by totally misleading a defendant.