(dissenting). I dissent. I do not think defendant violated the plea agreement. Moreover, even if he did, I believe the trial court still had a duty to give him an opportunity to withdraw his plea after the trial court determined that it could not abide by the agreement’s terms.
Despite the fact that defendant complied with all the literal terms of the agreement, the majority has surmised that defendant violated the "obvious intent” of the agreement. I do not think prosecutors are in such weak bargaining positions or so unskilled in legal matters that they need the assistance of courts to read into their contracts terms that are not there. While I would agree that the prosecution would have preferred to bind defendant to a promise that he not do anything bad between the time of the agreement and his sentencing, the fact remains that the prosecutor extracted no such promise from defendant as part of the plea agreement. The prosecutor required defendant to make certain promises, and defendant kept each promise he made.
Moreover, I cannot agree with the Court’s analysis of People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). In Killebrew, our Supreme Court held that when a trial court decides to exceed a sentence recommendation that is part of a plea agreement, the trial court must give the defendant an *539opportunity to withdraw his plea before imposing the sentence. Supra at 209-210. This procedure serves two functions: it preserves the sentencing discretion the Legislature has allocated to the judiciary, id. at 199, and it ensures that the waiver of constitutional rights that goes along with a guilty plea is voluntary, id. at 207.
The trial court went beyond the prosecutor’s bargained-for recommendation in sentencing defendant without giving him the opportunity to withdraw his plea. It did so on the basis of People v Garvin, 159 Mich App 38; 406 NW2d 469 (1987). In that case, this Court held that a prisoner who had pleaded guilty pursuant to a plea bargain but escaped while awaiting sentence implicitly waived his right to withdraw his plea.
I believe Garvin was wrongly decided. The right to withdraw a plea under Killebrew does not arise until the trial court informs the defendant that it is not going to abide by the sentence recommendation. It is a legal fiction to say that a defendant who is vigorously attempting to exercise his rights under Killebrew somehow implicitly waived those rights before they arose.
The Garvin Court also found that by escaping the defendant had failed to live up to an implicit part of the bargain and so could not seek to have the bargain enforced. Garvin, supra at 43-44. However, allowing withdrawal of a plea is not enforcing the bargain, it is merely abiding by Killebrew's clear constraints that limit the trial court’s discretion when such agreements unravel. If the defendant has violated the agreement, the trial court is free to reject the agreement, and, if the defendant is subsequently convicted of the original charges, the court may consider the violation before imposing an appropriate sentence. However, the court cannot choose to enforce that portion of the agree*540ment in which the defendant waived his constitutional rights in exchange for a limitation on his sentence and ignore that portion of the agreement that restricts the court’s sentencing discretion.
I understand why the trial court was not willing to abide by the sentencing recommendation. However, under Killebrew, when a trial court decides not to follow a bargained-for recommendation, the defendant must be given the opportunity to withdraw his plea. Because the trial court did not follow the prescribed procedure in this instance, I would vacate defendant’s sentence and remand to the trial court.
Defendant’s plea was accepted when tendered. However, the trial court, in the interest of justice, can allow an accepted plea to be withdrawn before sentencing, unless the withdrawal would substantially prejudice the prosecutor. MCR 6.310(B). Consistent with Killebrew, it would be "in the interest of justice” to allow withdrawal of a plea if the trial court decides to exceed the recommended sentence. Consequently, I would require that the trial court on remand ask the prosecution whether it would be substantially prejudiced by the withdrawal of the plea. If the prosecution would not be substantially prejudiced, the trial court could refuse to follow the sentence recommendation, but would have to give defendant an opportunity to withdraw the plea. However, if the prosecution would be prejudiced by withdrawal of the plea, to avoid violating either Killebrew or the court rule concerning withdrawal of guilty pleas, I would require the trial court to sentence defendant in accordance with the recommendation.
I dissent.