Thе prosecutor appeals, by leave granted, from the May 4, 1977, order of the circuit court directing reinstatement of a plea bargain. Because this Court granted the prosecution’s motion for stay of proceedings in its order granting leave to appeal defendant has not pled guilty pursuant to the reinstated bargain, but he stands ready to do so.
Defendant was charged, in a two-count information, with armed robbery, MCLA 750.529; MSA
*716 28.797, and with possession of a firearm during the commission or attempted commission of a felony, MCLA 750.227b; MSA 28.424(2). After preliminary examination and pretrial conference, at which the possibility of a plea bargain was discussed, 1 an assistant prosecuting attorney who was Chief of the Jackson County Prosecutor’s Trial Division contacted defense counsel and proposed a plea bargain on April 19, 1977. Under the terms of the proposed plea bargain, defendant would plead guilty to the offenses of attempted armed robbery and possession of a firearm during the commission of a felony, and would assist the police by giving them information regarding an unrelated criminal matter then under investigation, in return for the reduced charge.
On April 20, 1977, defendant agreed to the proposed plea bargain after discussing it with defense counsel, who thereupon communicated defendant’s acceptance of the plea bargain to the assistant prosecutor, stating that defendant would tender his plea after defense counsel had had an opportunity to confer with defendant’s parents. It was agreed that defendant would plead guilty on Friday, April 22, 1977. Before defense counsel had a chance to communicate with defendant’s parents, however, on April 21, the prosecutor’s office notified defense counsel that the plea offer was being withdrawn because the bargain was contrary to the prosecutor’s charging policy.
The parties stipulated at the hearing on the motion to reinstаte the negotiated plea that defendant had made no statement to the police in reliance upon the plea agreement prior to its withdrawal by the prosecutor. Although the trial
*717
judge made no express finding of abuse of disсretion by the prosecutor, nor of prejudice to defendant,
2
he thought that under
People v Reagan,
To assess the propriety of the trial judge’s action, account must be taken of three fundamental precepts. First, as the United States Supreme Court recognized in
Santobello v New York,
"A circuit judge does not enjoy supervisory power over a prosecuting attorney. He may reverse a magistrate’s decision only for abuse of discretion. He may not properly substitute his judgment for that of the magis
*718
trate or prosecuting attorney as if he were reviewing the magistrate’s decision
de novo
or acting in a supervisory capacity with respect to the prosecuting attorney. He may reverse or revise their decisions only if it appears on the record that they have abused the power confided to them.”
Genesee Prosecutor v Genesee Circuit Judge,
This limitation upon the trial judge’s power to control the exercise of prosecutorial discretion is founded upon the doctrine of separation of powers.
Genesee Prosecutor v Genesee Circuit Judge,
"was not meant to significantly impair the common-law rule that only the рrosecutor could exercise the power to enter a nolle prosequi. Rather, the statute was enacted primarily to protect defendants by not allowing prosecutors to exercise this power unless the reasons therеfor were stated on the record and leave of the court was obtained and recorded. While the statute, by requiring the trial court’s permission, does effect some infringement on the prosecutor’s exclusive common-law power, thе initial decision as to whether or not to enter a nolle prosequi nevertheless remains an executive
*719
function and a part of the duties of the prosecutor.”
People v Nelson,
Whether the trial judge’s action in reinstating the plea bargain in this case is viewed as analogous to an amendment of the informatiоn to include a lesser offense not charged, a practice disapproved in Genesee Prosecutor I, supra, or as a judicial dismissal not based on a lack of evidence, as in Stewart, supra, and Nelson, supra, he acted improperly unless the prosecutor can be said to have abused his discretion by withdrawing from the plea agreement. 4 Although People v Reagan, supra, upon which the trial judge relied in concluding that "when a bargain is struck, it should be in good faith and upheld on both sides”, does refer to a "pledge of public faith”, a breach of which might constitute an abuse of discretion, it is clear from a close reading of the Reagan opinion that the bargain there was not binding until after the trial court approved the order of nolle prosequi:
"We conclude that the prosecutor’s office, in entering into the agreement with defendant, gave a pledge of public faith which became binding when the nolle prosequi оrder was approved by the trial judge.” Reagan, supra, at 309 (emphasis added).
*720 "The approval or lack of approval of the agreement by the trial court was not viewed as determinative under Florida law which does not require judicial approval of nolle prosequi. (Citations omitted.) Michigan law does require judicial approval. See MCLA 767.29; MSA 28.969, cited above. Lack of judicial approval when such is statutorily required has been said to nullify the effect of purportedly dispositional agreement between the prosecution and a defendant.” Id. 316 n 13 (emphasis added).
"In Michigan, a trial court approval is the sine qua non of the decision to nolle prosequi.” Id. 317.
"Under the facts of this case, however, entry of the order of nolle prosequi was by its presence the final act of fruition of a binding agreement.” Id. 318 (emphasis added).
"In our view, a pledge of public faith in this instance gave force to an unwise agreement which became binding upon trial court approval of nolle prosequi.” Id. (emphasis added).
Accord,
People v Shipp,
Thus, even under the
Reagan
rule, his pledge of public faith nothwithstanding, the prosecutor is not bоund by his unwise agreement until
after
trial court approval thereof coincident to entry of an order bringing the agreement to "fruition”. Similarly, in
People v Ciatti,
Balanced against the non-binding, but nevertheless brokеn, pledge of public faith are two additional considerations that we believe lead to a different result here than in Reagan. First, defense counsel stipulated that defendant had performed no act in reliance upon the agreement thаt might prejudice his defense. The loss of the one-day period that the agreement was purportedly in effect is not alleged to have prejudiced defendant in the preparation of his defense, nor did defendant make any inculpatory statements that might be used against him to the police in reliance upon and compliance with the terms of the agreement. In contrast, in Reagan defendant had submitted to a polygraph test, a potentially prejudicial factor that the Court took into account in arriving at its decision. Reagan, supra, at 314 n 10. In the absence of any showing whatsoever of prejudice to defendant stemming from the prosecutor’s breach of the tentative agreement, a second factor tips the balance:
"For the judiciary to claim power to control the institution and conduct of prosecutions would be an intrusion on the power of the executive branch of government and a violation of the constitutional separation of рowers. Const 1963, art 3, § 2. It also violates our fundamental sense of fair play.” Genesee I, supra, at 684 (emphasis added).
Although we do not condone the conduct of the prosecutor’s office in this case, neither do we think it proper, in the absence of a finding оf abuse of prosecutorial discretion and resultant prejudice to *722 defendant, for the trial judge to undertake to impose upon the prosecutor an agreement with terms he believes to be unwise. Such agreements are not binding upоn the prosecutor, in the absence of prejudice to a defendant resulting from reliance thereon, until they receive judicial sanction, anymore than they are binding upon defendants (who are always free to withdraw from plea аgreements prior to entry of their guilty plea regardless of any prejudice to the prosecution that may result from a breach). To hold the prosecutor bound by the agreement under the circumstances outlined above would, we believe, actually inhibit the dispositional use of plea bargaining by placing the prosecutor at an absolute disadvantage. This, too, violates our fundamental sense of fair play. Absent any showing or allegation of prejudice to the defense resulting from the prosecutor’s breach of faith, we decline to permit judicial intrusion upon the function of his office.
The ruling of the trial judge granting defendant’s motion to reinstate the plea bargain is reversed and this case is remanded for further proceedings under the unamended information consistent with this opinion.
Notes
The pretrial summary directed counsel to "discuss the possibility of a negotiated plea”, and to complete all plea negotiations on or before May 6, 1977.
The trial judge thought that the question of whether there was prejudice to defendant was “awfully close”, but stated that it would not make any difference to his decision.
MCLA 767.29; MSA 28.969 provides such authority: “It shall not hereafter be lawful for any prosecuting attorney tо enter a nolle prosequi upon any indictment, or in any other way to discontinue or abandon the same, without stating on the record the reasons therefor and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes.”
Since defendant has not yet tendered his guilty plea or performed any part of the plea agreement, he does not seek the remedy of specific enforcement of the agreement, as in
Santobello, supra, People v Shipp,