dissenting.
The majority appears to proceed upon the dubious premise that sauce for the goose is necessarily sauce for the gander. The point is not so much that the “exchange of benefits is constitutional,” at p. 851, as that it is not ««constitutional, unless, inter alia, the State reneges on some promise upon which appellant’s consent was conditioned.
“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 *853inducement or consideration, such promise must be fulfilled.”
Santobello v. New York, 404 U.S. 257, at 262, 92 S.Ct. 495, at 498, 30 L.Ed.2d 427, at 433 (1971). But while due process considerations mandate fairness to an accused in the plea negotiation process, no concomitant constitutional requirement of fairness inures to the State. See, e.g., Noel v. State, (Tex.Cr.App., No. 827-83, delivered March 14, 1984) (Pending on motion for rehearing). Thus, it cannot be by constitutional authority that the majority restores the balance of fairness in this cause.
Nor do simple logic and fairness compel the result reached by the majority.
When, after pleading guilty in accordance with a plea bargain involving recommended punishment, an appellant brings an appeal pursuant to Article 44.02, V.A.C. C.P. in which he attacks, inter alia, the sentence assessed as being beyond the court’s authority to impose, I do not see that he has reneged on his agreement, or, as the majority states it, he “seeks to withdraw from his end of the bargain.” He has not retracted his plea of guilty and does not seek restoration of those constitutional rights the relinquishment of which constituted the consideration he gave up in the deal. For its part, the State’s consideration is recommendation of a particular term of confinement. That does not mean the State is entitled to obtain that recommended term pursuant to its agreement. The State received the benefit of its bargain when the guilty plea was entered,1 albeit conditioned on resolution of statutorily permitted claims on appeal. Just as an accused is not guaranteed the judge will follow the State’s recommendation as to duration of sentence, see Article 26.13, Y.A.C.C.P., neither is the State entitled to insist on obtaining at least the sentence recommended.2 That is not a benefit for *854which the State has bargained; therefore, “fairness,” whether or not constitutionally grounded, does not dictate the State must get it. Indeed, logic dictates that it should not. I would affirm the judgment of the court of appeals.
But, assuming that the majority is correct in returning the parties to their original preagreement positions, one other point must be made. Any sentence assessed in this cause upon appellant’s repleading to the original charge of delivery of diazepam must not exceed the two year term imposed pursuant to the plea bargain the Court now rescinds. To allow the State to seek and obtain a greater punishment would be to sanction vindictiveness against appellant for having attacked the authority of the court to impose a felony sentence for what proved on appeal to amount to a misdemeanor conviction. Whether the proper resolution of this Crisp -created problem is remand for resentencing, as the court of appeals ordered, or repleading, as the Court today holds, appellant can not be assessed any greater penalty than that to which he was originally subjected. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984).
I respectfully dissent.
. "For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages — the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prose-cutorial resources are conserved for those cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof.”
Brady v. United States, 397 U.S. 742, at 752, 90 S.Ct. 1463, at 1471, 25 L.Ed.2d 747, at 758 (1970).
. It is true that Article 26.13, supra, besides requiring that the trial judge taking a guilty plea in a felony case admonish an accused that he is not bound by the State’s recommendation as to punishment, also mandates that before any finding is made on the plea, the trial judge shall inform the accused whether he intends to follow the State’s recommendation, and in the event he does not intend to follow it, the accused “shall be permitted to withdraw his plea of guilty.” Acts 1977, 67th Leg., p. 748, ch. 280, § 1, eff. Aug. 29, 1977.
Prior to the 1977 amendment, however, when confronted with the claim that an accused should be allowed as a matter of right to withdraw from his guilty plea when the sentencing judge refuses to impose the recommended punishment, on authority of Santobello, supra, this Court replied:
"... We have stood steadfast for the position that assessment of punishment is the province of the judge or jury, not the prosecutor or the defendant. As conceded by all, Santobello does not explicitly require either that the court accept the prosecutor’s recommendation or that the defendant be permitted to withdraw his plea after the recommendation is rejected. Galvan v. State, Tex.Cr.App., 525 S.W.2d 24; Trevino v. State, Tex.Cr.App., 519 S.W.2d 864; Valdez v. State, Tex.Cr.App., 507 S.W.2d 202; Kincaid v. State, Tex.Cr.App., 500 S.W.2d 487; Reyna v. State, Tex.Cr.App., 478 S.W.2d 481. Cf. Wilson v. State, Tex.Cr.App., 515 S.W.2d 274. We recognize that negotiated pleas are an integral and essential part of our system of criminal justice. In cases where the guilty plea is the result of a negotiated plea agreement, the trial court in exercising its authority to assess punishment also serves as a check upon oppressive or unfair bargains or those not in the public interest. Such a function may inure to the benefit of the defendant as much as the State. Hence, we decline to restrict the trial court’s discretion in this area.”
Cruz v. State, 530 S.W.2d 817, 821 (Tex.Cr.App.1975). See also Williams v. State, 487 S.W.2d 363 (Tex.Cr.App.1972).
Subsequently, in dissenting opinion in Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975), Judge Roberts argued that the Court should judicially fashion a rule allowing an accused to withdraw his guilty plea upon a trial court’s rejection of a recommended punishment:
*854"The denial of motions to withdraw guilty pleas in such cases also results in manifest injustice to the defendant. His guilty plea usually waives numerous rights, including the right to a jury trial, the right to confront witnesses and the right to assert whatever defenses he thinks he has. What is the consideration for these concessions if the court rejects the bargain and the plea is irrevocable?”
Id., at 77. Apparently of the view that obtaining the recommendation from the prosecution was consideration enough for the defendant’s concessions, the majority in Gibson refused to adopt Judge Roberts’ suggested gloss to Article 26.13.
A year later, however, the Legislature amended Article 26.13 to embrace this rule. Thus it expressly provided for unilateral withdrawal by an accused from his agreement even though the State has executed its part of the bargain. Still, no provision exists allowing the State to rescind the agreement and force an accused to replead in the event the trial court does not assess at least the recommended punishment. Nor, it seems to me, can the State realistically argue that that is a benefit for which it bargained in the plea negotiations.