Johnson v. State, 529 S.W.3d 36

Johnson pled guilty (Oct 28, 2013) to second-degree statutory sodomy pursuant to a plea agreement in which the State agreed to recommend no more than six years.
After a Sentencing Assessment Report (SAR) showed he denied the conduct, the circuit court entered an order (Dec 30, 2013) setting aside the guilty plea “in consultation and by agreement of counsel and the defendant.”
A superseding indictment later charged Johnson with two counts of first-degree statutory sodomy; Johnson pled guilty to both (Aug 15, 2014) under a new agreement with a 12-year lid, to run concurrently.
Johnson filed a Rule 24.035 post-conviction motion claiming the court lacked authority to set aside his original plea and that his subsequent convictions violated the Double Jeopardy Clause.
After an evidentiary hearing, the motion court found Johnson had agreed to or acquiesced in withdrawal of his original plea and denied relief; Johnson appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the circuit court improperly set aside Johnson’s original guilty plea	Johnson: court set aside plea sua sponte without his input and therefore had no authority to withdraw plea	State/Court: plea was withdrawn with Johnson’s agreement/acquiescence (per order and later statements)	Court: No clear error — court found Johnson consented/acquiesced to withdrawal
Whether reprosecution after plea withdrawal violated Double Jeopardy	Johnson: unconditional acceptance of plea had attached jeopardy; withdrawal and reprosecution thus barred	State/Court: no double jeopardy because defendant consented to withdrawal (analogous to consenting to mistrial)	Court: Double jeopardy did not bar reprosecution because withdrawal occurred with defendant’s consent

Garris v. State, 389 S.W.3d 648 (Mo. banc 2012) (standard of review for Rule 24.035 motions)
Peiffer v. State, 88 S.W.3d 439 (Mo. banc 2002) (jeopardy attaches upon unconditional acceptance of a guilty plea)
State v. York, 252 S.W.3d 245 (Mo. App. S.D. 2008) (no double jeopardy where defendant consents to withdrawal of plea)
State v. Prince, 518 S.W.3d 847 (Mo. App. W.D. 2017) (court may not set aside accepted plea sua sponte absent voluntariness concerns)
State v. Tolliver, 839 S.W.2d 296 (Mo. banc 1992) (double jeopardy does not bar retrial when defendant consents to mistrial)
United States v. Dinitz, 424 U.S. 600 (U.S. 1976) (distinguishes court-declared mistrials from mistrials at defendant’s request for double jeopardy purposes)
State ex rel. Kemper v. Vincent, 191 S.W.3d 45 (Mo. banc 2006) (if defendant requests or consents to mistrial, reprosecution is not barred)
State v. Choate, 639 S.W.2d 906 (Mo. App. S.D. 1982) (withdrawal of plea prior to sentencing lies within court’s discretion)