State v. Leonard C. Matson, 2003 WI App 253
For Matson: Michael Yovovich, SPD, Madison Appellate
¶33. Here, as he did before the circuit court, Matson seeks not to withdraw his plea, which is one remedy for a breach of a plea agreement. Santobello v. New York, 404 U.S. 257, 263 (1971). Matson instead seeks specific performance, a new sentencing by a different judge with a new presentence report. While the choice of remedy is not up to the defendant, if a defendant seeks only specific performance, we can simply order resentencing by a different judge. State v. Howard, 2001 WI App 137, ¶37, 246 Wis. 2d 475, 630 N.W.2d 244. The less extreme remedy of specific performance is always preferred. Id.¶34. A new circuit court judge should conduct Matson’s resentencing. Furthermore, to avoid any further taint in the case, we also conclude that a new presentence investigation should be conducted, without consideration of detective Alstadt’s letter, and a new report completed by an agent from another county. See Howland, 2003 WI App 104 at ¶38.