(concurring). Certification was granted in this case to consider the efficacy of a defendant’s express waiver of a right of appeal as part of a plea bargain. State *514v. Spinks, 66 N. J. 568, 573 n. 2 (1975). That is not the issue raised under the facts of this case. The agreement which the parties reached did not include a provision not to appeal from the plea bargain. Rather, as a part of the agreement, it was understood that the jury trial conviction of armed robbery would stand and the sodomy indictment be dismissed. Under these circumstances the defendant’s acceptance of the jury verdict should be deemed to be in the same category as a plea of guilty to armed robbery.
A conviction follows whether one pleads guilty or is found guilty by a jury. 4 Blackstone, Commentaries c. XXVII; Schireson v. State Bd. of Medical Examiners, 130 N. J. L. 570 (E. & A. 1943); State v. Compton, 28 N. J. Super. 45 (App. Div. 1953). By voluntarily and knowingly agreeing that he would not appeal from the jury verdict, Gibson conceded the propriety of that verdict. Even now he does not proclaim his innocence. Where the defendant, with the adequate advice and explanation of counsel of the consequences of voluntarily accepting the jury verdict, chooses to do so, his position as to his guilt is substantially the same as if he had pleaded guilty. The factual support of guilt has been established by the jury, and the result has been knowingly and willingly accepted by the defendant. The situation equates to a guilty plea.
It is well settled that where a defendant, having pleaded guilty, seeks to withdraw that plea, “it may not be withdrawn except pursuant to leave granted in the exercise of the court’s discretion.” State v. Deutsch, 34 N. J. 190, 197 (1961). He must demonstrate manifest injustice. State v. Deutsch, supra; State v. Humphreys, 89 N. J. Super. 322 (App. Div. 1965). This is particularly true where the guilty plea is part of a plea bargain. State v. Huntley, 129 N. J. Super. 13 (App. Div. 1974), certif. den. 66 N. J. 312 (1974); State v. Fisher, 132 N. J. Super. 313 (App. Div. 1975); State v. Herman, 47 N. J. 73, 79 (1966). The burden of proof rests on the defendant. That burden, which *515is equally applicable here,1 was not met, and the trial court did not abuse its discretion in refusing to permit the defendant to renege on his agreement not to appeal from the jury verdict of guilty.
In passing it may be noted that the defendant does not desire to nullify the entire plea bargain. He does not seek to reverse dismissal of the sodomy charge or to rescind his guilty pleas to the escape and malicious damage indictments. He is using the post-conviction relief procedure as a method to enable him to appeal out of time.
The majority has properly concluded that a plea bargain which encompasses a waiver of appeal is not per se illegal. Plea bargaining, which has become a “legitimate and respectable adjunct of the administration of the criminal laws” [State v. Thomas, 61 N. J. 314, 321 (1972)], includes the surrender of such fundamental rights as the entitlements to a jury trial and privilege against self incrimination. Boykin v. Alabama, 395 U. S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274, 279 (1969); State v. Raymond, 113 N. J. Super. 222, 227 (App. Div. 1971); Bishop, “Waivers in Pleas of Guilty,” 60 F. R. D. 513 (1973). Certainly, the right of appeal is not more sacrosanct. There is no valid constitutional reason which justifies elimination of the waiver of appeal as part of a plea bargain. Brown v. Haynes, 385 F. Supp. 285 (W. D. Mo. 1974).
Despite a defendant’s agreement not to appeal from convictions entered in accordance with a plea bargain or from convictions announced by a jury, the majority, although agreeing that sound judicial policy warrants the validity of such provisions, nevertheless provides that a defendant may *516file a notice of appeal within 45 days [B. 2:4-1 (a)] after sentence has been imposed in accordance with the understanding. If he does so, the prosecutor then has the option to rescind the plea bargain agreement.2 The new rule presumably is based on “the interests of justice and appropriate policy considerations” which the majority finds justifies an appeal for a defendant who has never admitted his guilt. Conspicuous by its absence is any delineation of precisely what those interests of justice or policy considerations consist of, particularly where the defendant has admitted his guilt.
Societal interests call for the enforcement of such agreements after judicial sanction has been obtained. As Justice Mountain recently wrote for a unanimous court in State v. Thomas, supra,
If plea bargaining is to fulfill its intended purpose, it must be conducted fairly on both sides and the results must not disappoint the reasonable expectations of either. [61 N. J. at 321],
So long as the defendant has knowingly and voluntarily entered into the plea agreement and the terms have been considered and approved by the court, policy considerations call for enforcement. The majority would not permit a defendant to abrogate provisions of a plea bargain which does not include as one of its terms an appeal waiver provision. Yet, is not the surrender of the right to a jury trial — an ingredient of every plea ■— as vital to the defendant as the waiver of a right to appeal? No sound reason exists for the singular treatment accorded plea bargains which contain a no appeal provision.
This court, after careful consideration and after receipt of comments from the bar and public, has recently promulgated general rules governing plea bargains. No suggestion *517that the defendant should be. permitted to violate a term of his plea bargain was made by any interested person. No unfairness to any defendant has been demonstrated where the guidelines of the Administrative Directive, 94 N. J. L. J. 1 (1971), now incorporated in the Rules (R. 3:9-3) have been followed. To permit the defendant willy nilly to abrogate a coneededly lawful provision of the agreement during a 45 day period after sentence smacks of letting him “play fast and loose with our courts.” State v. Herman, supra, 47 N. J. at 79.
The majority asserts that it is not likely that the State will be prejudiced if required to try dismissed charges. This assertion does not square with reality. Justice Proctor in State v. Herman, supra, pointed out one practical difficulty which the prosecution must face:
*■ * It is a difficult task at best for the State to assemble its witnesses and prepare its case for a trial on a specified date; it is neither fair nor just to compel the State to repeat this procedure as to the same defendant when the first trial is terminated by the defendant’s own guilty plea given freely and understandingly. [47 N. J. at 78-79]
Eurther, a 453 day period within which to file the notice'of appeal will result in more than a 45 day delay of trial. After the prosecutor has rescinded the agreement, which presumably will be a reasonable time after the notice has been filed, the matter will have to be rescheduled. Attorneys will have to be available and the case fit in with the trial court’s calendar. Trial delays of two or more months will likely occur. Conviction rates decrease, and presumably the number of guilty who are freed increase, as the time intervals between indictment and trial widen. See Banfield & Anderson, “Continuance in the Cook County Criminal Courts,” 35 U. CM. L. Rev. 259, 300 (1968) ; Barker v. Wingo, 407 U. S. 514, 521, 92 S. Ct. 2182, 33 L. Ed. 2d *518101 (1972). The rule adopted by the majority not only serves no useful function but can defeat justice by unjustifiable delay.
With respect to appellate review, a differentiation must be made between an agreement not to appeal from a jury verdict which is one element of a plea bargain and an agreement not to appeal from the plea bargain. In the former the defendant is accepting the jury verdict and waiving trial and pretrial errors. He acknowledges his guilt. It is comparable to his other guilty plea or pleas made at the time the plea bargain is submitted to the court for approval.4
Hitherto the scope of appellate review of a plea bargain, even in the absence of any agreement not to appeal, has been limited to ascertaining whether the plea was made voluntarily and with a full understanding of its consequences [Brady v. United States, 397 U. S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)], to determining if the plea bargain was kept [State v. Jones, 66 N. J. 524 (1975)], and to making certain that the sentence was not excessive [State v. Spinks, supra]. As a matter of policy I would continue to -grant a defendant the right to appeal for relief based on those reasons, irrespective of the defendant’s express agreement not to appeal from a plea bargain.
Permitting the plea agreement to be rescinded at the option of the prosecutor after the defendant files a notice of appeal contrary to the parties’ express understanding, even though the defendant has voluntarily and knowingly admitted his guilt, does not serve the interests of the de*519fendant or of the State and is contrary to the sound administration of justice.
I concur in the judgment of affirmance.
Both the majority and dissenting opinions agree that the defendant’s petition for relief was grounded on R. 3:22(a). Under that Rule the defendant must, in the absence of constitutional bases as is the case here, establish a “[slubstantial denial” of his rights under the laws.of the State. It follows that manifest injustice is a necessary ingredient before relief may be granted.
The option to revoke is contrary to the recently announced policy in State v. Spinks, supra, which prohibited the State from withdrawing from the terms of a plea bargain which is modified on appeal.
The time for appeal may be extended beyond 45 days. R. 2 :4 — 4.
It may be noted that only one of the eases relied upon by the dissent involved waiver of an appeal of a conviction after trial. Worcester v. Commissioner of Internal Revenue, 370 F. 2d 713 (1 Cir. 1966). After conviction for filing false income tax returns, the trial court offered to place the defendant on probation if he did not appeal, and, if be did, be would receive an 18 month sentence. The defendant agreed not to appeal. This was clearly an involuntary, coercive agreement bargained for by the court.