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Failure to negotiate conditions of ERP eligiblity precludes claim for breach of plea bargain

State v. Johnny E. Miller, 2014AP1392-CR, 2/18/05, District 2 (1-judge opinion, ineligible for publication); case activity

Miller argued that the State breached its plea agreement with him when, at sentencing, it recommended that he be eligible for the Earned Release Program only after he served a specified period of prison time. The State, he claimed, impermissibly advocated a harsher sentence than recommended. The court of appeals rejected Miller’s argument because he and the State simply “did not have any agreement as to ERP eligibility.” Slip op. ¶6.

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{ 2 comments… add one }
  • Jeremy Newman February 20, 2015, 11:20 am

    ‘Law in Action’ note: The DOC has an unwritten but fairly firm and longstanding rule that inmates are not placed into ERP until they are within three years of release (even assuming the court placed no limitation on date of entry into the program). The rule, as the Remington Center understands it, is based on the length of the waiting list and the limited bed space at the sites that offer ERP and CIP. Therefore, Mr. Miller is unlikely to actually be affected by not being eligible for ERP until he begins serving the consecutive three-year sentence.

  • Randy February 23, 2015, 12:13 pm

    It is unlikely Mr. Miller will be considered for participation in the ERP Program, especially after his consecutive sentence commences, as ERP Entry/Placement criteria requires an inmate not have any current conviction for an offense involving a weapon, this to include, illegal possession of a firearm.

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