¶1dissenting.
¶2The majority says: “The question before the Court in this case, as in Santobello, is not what the judge did or what his perceptions of the agreement were, but what went on between the prosecutor and the appellant.” However, what went on between the prosecutor and the appellant was a matter to be shown by the record, more particularly by the evidence on the motion for new trial. The trial judge had the duty after that hearing to determine what went on between the prosecutor and the appellant. The trial judge’s determination of the issue is reflected by his order overruling the motion for new trial. The trial judge’s ruling on that matter should only be disturbed if there is a clear abuse of discretion.
¶3The majority also says: “The Supreme Court reversed Santobello, not because of what the trial judge did or did not do, but because the prosecutor had not kept faith with the defendant.” The trial judge in this case based on the complete record as evidenced by his overruling of the motion for new trial found that the prosecutor had kept faith with the appellant.
¶4The trial judge, the Honorable Thomas H. Routt, heard the evidence on the motion for new trial and found that there was not a breach of agreement by the prosecutor and overruled the motion for new trial. The trial judge is the finder of the facts and he may believe or disbelieve any of the testimony he heard on the motion for new trial. Since I find no abuse of discretion on the part of the trial court in overruling the motion for new trial, I dissent to the reversal of this judgment.