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Plea Bargains – Validity: Reopen and Amend to Less Serious Offense if Restitution Made Before Sentencing

State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta

Issue: Whether a plea agreement, which provided that if Cash returned stolen goods prior to sentencing the State would request that the judgment be reopened and amended from burglary to Class E felony theft, was invalid and the guilty plea therefore invalid as well, under the logic of State v. Hayes, 167 Wis. 2d 423, 425, 481 N.W.2d 699 (Ct. App. 1992) (plea bargain that allows a judgment to be reopened and amended to lesser conviction if the defendant successfully completed probation unenforceable).


¶14. Cash argues that a plea based on a legal impossibility makes the plea an uninformed one, State v. Dibble, 2002 WI App 219, ¶5, 257 Wis. 2d 274, 650 N.W.2d 908, review denied, 2002 WI 121, 257 Wis. 2d 121, 653 N.W.2d 893 (Wis. Oct. 21, 2002) (No. 02-0538-CR), and that a plea must meet legal standards for it to be a valid plea, State v. Woods, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct. App. 1992).

¶17. We hold that Hayes does not render the plea agreement invalid in this case. The agreement here provided that following his plea of no contest, Cash would have the opportunity prior to sentencing to procure and return the stolen items. If Cash was able to satisfy this contingency during this interval, the State would amend the charge to a lesser offense and the sentencing would proceed accordingly.7 Unlike the defendant in Hayes, Cash would not have served any portion of a sentence (probation or otherwise) prior to any potential amendment of charge and the imposition of sentence. Thus, the concerns of the Hayes court regarding the limitations of the probation statute and the trial court’s lack of authority to amend a judgment after completion of a sentence are not implicated here.

¶18. We hold that the plea agreement was not invalid under Hayes. Therefore, the trial court correctly denied Cash’s motion to withdraw his no contest plea.

7   Thus, we accept Cash’s contention that he was “convicted” following his plea within the meaning of State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989); State v. Trudeau, 157 Wis. 2d 51, 458 N.W.2d 383 (Ct. App. 1989); and State v. Smet, 186 Wis. 2d 24, 519 N.W.2d 697 (Ct. App. 1994). However, both his plea and conviction during this interval were conditional under the terms of the plea agreement.


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