dissenting:
I respectfully dissent. While I agree with the majority that this ease is one of statutory construction, I would hold, as the court of appeals did,, that Maguire’s second sentence violated the plain language of section 76-3-405.
Section 76-3-405 states:
Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied.
Utah Code Ann. § 76-3-405 (1995). Maguire entered his first plea agreement with the state wherein he was convicted of aggravated assault and sentenced to one year in the Utah state prison. When Maguire decided to withdraw his plea he was eventually empowered to do so by this court after “direct review.” State v. Maguire, 830 P.2d 216 (Utah 1992). Following Maguire’s second plea he was convicted a second time for the “same. offense,” namely aggravated assault. However, the second time around Maguire was sentenced to a term much harsher than his first plea sentence. This outcome directly contravenes the statutory prohibition: ‘Where a conviction or sentence has been set aside on direct review ..., the court shall not impose a [more severe] sentence for the same offense_” Utah Code Ann. § 76-3-405. The language of section 76-3-405 is simple and straightforward. “[I]t is not our prerogative to rewrite that section or question the wisdom, social desirability, or public policy underlying it.” Salt Lake Child and Family Therapy Clinic v. Frederick, 890 P.2d 1017, 1021 (Utah 1995) (citing Utah Mfrs.’ Ass’n v. Stewart, 82 Utah 198, 204, 23 P.2d 229, 232 (1933)). That the legislature did not directly address or possibly even consider plea bargains when it originally passed section 76-3-405 in 1973 should not give us license to rewrite the statute. Specifically, the majority holds that because Maguire sought reversal of his Motion to Withdraw Plea, his appeal was not ultimately an attack on his conviction or sentence but was merely an attack on his Motion to Withdraw Plea. The question remains, however, as to how Maguire could attack his conviction or sentence based on his plea if not through a motion to withdraw it. Ma-guire’s Motion to Withdraw his plea constituted his only non-jurisdictional “attack” on the plea conviction and sentence. See generally State v. Jennings, 875 P.2d 566, 567 n. 1 (Utah Ct.App.1994) (noting guilty plea waives all non-jurisdictional pre-plea claims); see also Salazar v. Warden, 852 P.2d 988, 991 (Utah 1993); State v. Gallegos, 738 P.2d 1040, 1041-42 (Utah 1987); State v. Kay, 717 P.2d 1294, 1299 (Utah 1986). The majority’s distinction between an- attack on a plea and one on a conviction is unconvincing. Ma-guire’s only means of attacking the conviction was precisely an attack on the plea. See Jennings, 875 P.2d at 567. n. 1.
Accordingly,, we should refuse the state’s invitation to circumvent the plain meaning of this statute. Section 76-3-405 states quite plainly that an individual cannot be subjected to a harsher sentence once he has successfully appealed a conviction. Maguire successfully challenged the trial court’s denial of his motion to withdraw his plea, and as a consequence his conviction was set aside. Ma-guire was thereafter sentenced to a more severe term in direct contravention of section 76-3-405. I would affirm.