Weissmann, J.
Prosecuting attorneys have broad discretion to bargain with a defendant in resolving criminal charges through a pretrial diversion program. But once the State enters into a valid diversion agreement, it may not unilaterally revoke the agreement based only on buyer’s remorse.
That is what happened here. Despite arresting Jeremiah Smith for both misdemeanor trespass and felony lifetime parole violation, the State charged Smith with the misdemeanor alone. The State and Smith then entered into a valid pretrial diversion agreement to resolve the charge. But barely a week later, the State regretted not also charging Smith with the felony. To remedy this oversight, the State revoked Smith’s diversion agreement and added the felony count. This was a breach of the State’s agreement with Smith.
We reverse and remand with instructions to dismiss the case against Smith with prejudice.
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Smith argues that the trial court erred in granting the State’s motion to revoke his diversion agreement because he never violated the agreement’s terms. The State claims it was never bound by the diversion agreement because such agreements lack consideration and, thus, are not enforceable as contracts. According to the State, it acted within its discretion by revoking the agreement and adding the additional charge.
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The bargained for exchange in Smith’s diversion agreement is clear: the State agreed to “dismiss all charges in this case” in exchange for Smith “successfully and timely complet[ing] all terms of th[e] agreement.” App. Vol. II, p. 23. Those terms were detrimental to Smith and included that he: (1) pay a $454 diversion fee; (2) “maintain good and lawful behavior”; (3) “NOT use or consume alcohol”; (4) “NOT enter any bar, tavern, or liquor store”; and (5) submit to random alcohol and drug screens. Id. Additionally, the agreement provided that Smith waived his rights against unlawful search and seizure, his right to trial by jury, and his right to a speedy trial. Id. The State also benefitted by avoiding trial. See Bowers, 500 N.E.2d at 204 (“[P]re-trial disposition of criminal charges . . . facilitate[s] the essential conservation of limited judicial and prosecutorial resources.”).
Smith’s diversion agreement was supported by consideration, and the State was bound by the agreement’s terms.
Having concluded that the State was bound by Smith’s diversion agreement, we have no trouble finding the State’s revocation of the agreement was a breach of its terms. The agreement specifically provided: “The State reserves the right to revoke this agreement for any reason prior to its execution and for any violation of its terms thereafter.” App. Vol. II, p. 23 (emphasis omitted). As it is undisputed that the agreement had been properly executed and Smith did not violate any of its terms, the State had no right to revoke it.
The State also failed to support its claim that revocation was warranted by the discovery of “additional information.” Id. at 24. When the trial court inquired about the alleged information, the State ambiguously replied: “We couldn’t, we didn’t have any way, we didn’t have enough information about that and didn’t know that, any details, and were unable to get additional details until we were later contacted with additional information. They gave us specifics.” Tr. Vol. II, pp. 9-10. The State neither identified these “specifics” nor explained why they were necessary to charge Smith with felony lifetime parole violation when he had already been arrested for the offense. The State’s lack of explanation leaves us firmly convinced that nothing other than a charging error occurred.
“[T]he promise of a state official in his public capacity is a pledge of the public faith and is not to be lightly disregarded.” Bowers, 500 N.E.2d at 204. “The public justifiably expects the State, above all others, to keep its bond.” Id. Because revoking Smith’s diversion agreement without cause was a breach of the agreement’s terms, the trial court erred in granting the State’s motion to revoke the agreement.
Accordingly, we reverse the trial court’s judgment and remand with instructions to dismiss the case against Smith with prejudice.
Robb, J., and Pyle, J., concur.