State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244
Issue: Whether the remedy for a plea bargain breach should be to vacate the plea or to resentence on the plea.
¶36 Our reading of Bangert and Smith leads us to conclude that the remedies and procedures outlined in Santobello are consistent with Wisconsin law. Specifically, the sentencing court has discretion to determine the appropriate remedy for a breach. See Kingsley v. United States, 968 F.2d 109, 113 (1st Cir. 1992). If the trial court determines that resentencing is appropriate, the court should order resentencing by a different judge. See Santobello, 404 U.S. at 262-63.¶37 The choice of remedy is not up to the defendant; it rests with the court. See Kingsley, 968 F.2d at 113. However, if the defendant seeks only specific performance by resentencing, then the court can simply order resentencing by a different judge. See United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990). When selecting a remedy, sentencing courts should bear in mind that specific performance, the less extreme remedy, is preferred. See Kingsley, 968 F.2d at 113.