¶1dissenting:
¶2I respectfully dissent.
¶3The majority relies upon State v. Cavanaugh, supra, for its order remanding this case for further proceedings.
¶4I respectfully dissented in Cavanaugh, but I now accept that holding as Montana law. However, that opinion clearly states that it was to be applied prospectively only, and its use retroactively appears to me to be a misapplication of the law.
¶5In my view, Judge Holter was correct in requiring that full restitution be made to the innocent victim, and I would therefore affirm the sentence.
¶7delivered the order.
¶8This Court handed down its original opinion in this cause on February 27, 1984, reported in 41 St.Rep. 315.
¶9Hendricks was convicted of burglary in the District Court, Nineteenth Judicial District, Lincoln county. He was sentenced to three years in each of four offenses, to be served consecutively, but his sentence of imprisonment was suspended upon certain conditions. One of the conditions was that he make restitution for an automobile valued at $12,000. Hendricks appeals from that portion of the sentence requiring him to make restitution for the value of the automobile.
¶10Because the State and Hendricks had entered in to a plea bargain, through their respective counsel, and because the District Court chose not to follow the terms of the plea bargain, this Court in its original opinion, under out holding in State v. Cavanaugh (Mont. 1983), [207 Mont. 237,] 673 P.2d 482, 40 St.Rep. 2007, remanded the cause to the District Court for further proceedings. In our original opinion here, we said that if on remand the District Court decided on final disposition of the case not to agree to the restitution concessions involving the 1982 Capri automobile, it should give the defendants a chance either to affirm or withdraw his plea of guilty. However, we also provided that if the county attorney presented evidence of prejudice to the State resulting from its inability to prosecute other charges which have been dismissed under the plea bargain, then the sentence would be affirmed.
¶11The original opinion in this cause was decided by a panel of five Justices assigned to the case. Three of the justices agreed to the remand for further proceedings on the basis just stated. A fourth justice agreed that Hendricks should have the opportunity to withdraw his plea of guilty, but that the county attorney should not be able to prevent the withdrawal of his plea of guilty by presenting evidence of *516prejudice to the state if a trial were required. A fifth justice dissented in any event to the remand.
¶12The State petitioned for a rehearing, contending that only three justices of the Court had decided to allow the State to show evidence as to the dismissed charges, of the defendant withdrew his plea. The State contended therefore, that the opinion as written was not a decision of the majority of the Court.
¶13We granted rehearing and oral argument was had on the matter before this Court on September 24, 1984. On reconsideration by the full Court.
¶14IT IS NOW ORDERED:
¶151. The sentence imposed upon the defendant John Tice Hendricks is modified by striking therefrom all provisions relating to restitution to be made by him for or on account of the 1982 Capri automobile, and as so modified, the judgment of the District Court is affirmed.
¶162. This Order is prospective only, and shall apply only to payments not heretofore made by Hendricks relating to said 1982 Capri automobile.
¶17dissenting:
¶18I dissent for the same reasons stated in my dissent to the Opinion in this cause.