State v. Powell , 341 Utah Adv. Rep. 25 ( 1998 )

DURHAM, Associate Chief Justice,

dissenting:

While I believe that this case is readily distinguishable from its companion case State v. Maguire, I dissent here for the same reason that I did in Maguire. I would hold that the court of appeals, when it granted defendant Powell’s Motion to Withdraw Plea, did set aside “on direct review” a conviction or sentence as contemplated by section 76-3-405 of the Utah Code. The majority holds that Powell’s conviction to a harsher sentence after his withdrawal of a plea bargain and a subsequent trial did not violate section 76-3-405 of the Utah Code. I would hold that the harsher sentencing violated section 76-3-405.

As in State v. Maguire, the majority resorts to unlikely semantic distinctions to avoid the plain language of the statute. The majority thereby amends the statute to accomplish the same end that the legislature has since accomplished by amending section 76-3-405 to preclude plea bargains. Utah Code Ann. § 76-3-405(2)(b) (Supp.1997). We should not ignore plain language in order to rectify a presumed mistake by the original drafting legislators.