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Can a Prosecutor in California "take back" a signed plea agreement at sentencing In California

Fremont, CA |

If both parties have signed a Plea agreement, and then at sentencing the prosecutor finds out that what he thought was a felony, is actually a misdemeanor, can he take back the plea agreement?

Defendant was charged with several counts including 498 (utility theft), defendant pleads no contest to utility theft and 1 other misdemeanor (law book in court house was outdated... old law stated theft over $400 was felony, new "uniformed code of justice" updated the law to over $950 was (misdemeanor) no more than 1 year penalty also both the defendant and prosecutor waived "any errors" at time of acceptance by judge,,, I think These apply... [1] “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). A plea agreement is a contract, and the government is held to its literal terms. Mondragon, 228 F.3d at 980

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Attorney answers 3


The answer to this question would require a lot more specific details. Generally, the answer to the question 'can a prosecutor take back a signed deal' is... well, there isn't an accurate general answer to that question. It depends on what precisely happened.
The best person to answer this question is the attorney who helped reach the deal with the prosecution. That person will obviously fight like hell to get the deal enforced, so long as it's possible to enforce it.

Any answer provided on Avvo, including this one, is a general answer about a legal question, not specific legal advice. Different lawyers may analyze this or any other matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am licensed in the state of California and the Central District of the Ninth Circuit.


If the prosecutor signed an agreement that you would enter a guilty plea to a felony when the offense charged was actually a misdemeanor, the plea agreement would be invalid whether he took it back or not.


I agree with Mr. Kaman. The court should not accept a guilty plea to a felony for a crime that is actually a misdemeanor. Besides, why would you want to accept a guilty plea to a felony when the most your can be charged with is a misdemeanor? Consult the attorney who represented you in arranging the plea deal.

The response above is not intended as legal advice. This response does not create an attorney-client relationship. Legal questions can only be fully answered through consultation with an attorney to whom you give full and accurate details. Anything you post here is not confidential and is not protected by the attorney-client relationship. It is highly recommended that you seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting.