State v. King, 218 N.C. App. 384 (Feb. 7, 2012)

The trial court erred by setting aside the plea agreement in response to the defendant’s motion seeking return of seized property. The defendant pleaded guilty pursuant to a plea agreement that called for, in part, the return of over $6,000 in seized funds. The defendant complied with her obligations under the agreement, but the State did not return the funds, on grounds that they had been forfeited to federal and State authorities. When the defendant filed a motion for return of the property, the trial court found that the State had breached the agreement but that specific performance was impossible; instead, the trial judge struck the plea. The court began by agreeing that the State breached the plea agreement. It went on to conclude that because the State was in a better position to know whether the money had been forfeited, it bore the risk as to the mistake of fact. It explained:

[When] the district attorney entered into the plea agreement, he was capable of confirming the status of the funds prior to agreeing to return them to defendant. The money was seized from defendant and sent to the DEA the same month. The parties did not enter into the plea agreement until approximately nine months after the forfeiture . . . . The State could have easily confirmed the availability of the funds prior to the execution of the agreement but failed to do so. Therefore, the State must bear the risk of that mistake and the Court erred by rescinding the plea agreement based on a mistake of fact.

In this case, it concluded, rescission could not repair the harm to the defendant because the defendant had already completed approximately nine months of probation and had complied with all the terms of the plea agreement, including payment of fines and costs. The court reasoned that while the particular funds seized were no longer available, “money is fungible” and “there is no requirement that the exact funds seized must be returned to defendant and the State cannot avoid its obligation on this basis.” The court reversed the trial court’s order, reinstated the plea, and ordered the State to return the funds.