Withdrawing From or Breaching a Plea Agreement
Key takeaways
- The accused can withdraw any time before the sentence is announced; withdrawing the guilty plea itself after acceptance requires good cause. R.C.M. 705(e)(4); R.C.M. 910(h).
- The convening authority can withdraw only before the accused substantially performs — and in certain other limited circumstances, including a disagreement over a material term.
- Withdrawing to chase a defense is legal but risky: nothing stops the convening authority from demanding a higher cap in a second deal. United States v. Bray, 49 M.J. 300 (C.A.A.F. 1998).
- When the government fails a material term, the accused picks the remedy: specific performance, withdrawal, or consented-to alternative relief. United States v. Lundy, 60 M.J. 52 (C.A.A.F. 2004).
- Post-sentence disagreement over what a term means forces the judge to conform the agreement to the accused’s understanding (with government consent) or let the accused withdraw the plea. R.C.M. 910(h)(3).
Two exits, two standards
A plea agreement is a contract, and like any contract it can be abandoned, breached, or broken by mutual misunderstanding. The exit rules are asymmetric by design — the accused’s door stays open far longer than the government’s:
“[T]he accused may withdraw from a plea agreement at any time prior to the sentence being announced” … the convening authority may withdraw “at any time before substantial performance by the accused of promises contained in the agreement.”R.C.M. 705(e)(4)
| Who | Can withdraw… | Standard / limits |
|---|---|---|
| Accused — from the agreement | Any time before the sentence is announced | No cause required; consequences are strategic, not legal |
| Accused — from the plea after acceptance | Only with the judge’s permission | Good cause shown; R.C.M. 910(h), 811(d) |
| Convening authority | Before the accused substantially performs | Plus other limited grounds — e.g., a disclosed disagreement over a material term, or findings set aside on appeal |
Everything that follows — who withdrew, when, and why — determines which remedies survive. How the deal is built and accepted in the first place is covered in the plea agreements guide; which terms are enforceable at all is covered in permissible and prohibited plea agreement terms. This page is about what happens when the bargain breaks.
Withdrawal by the accused
Until the sentence is announced at the end of the sentencing proceeding, the accused holds a unilateral exit from the agreement. But two separate acts hide inside the word “withdraw”: leaving the agreement, and unwinding the guilty plea already entered under it. After the military judge accepts the plea, taking the plea itself back requires good cause and the judge’s permission — the machinery of R.C.M. 910(h), covered with the rest of plea-withdrawal law in when a guilty plea is improvident.
The exit is real, and so is its price. In United States v. Bray, 49 M.J. 300 (C.A.A.F. 1998), the accused completed a providence inquiry under a deal capping confinement at 20 years, then withdrew his pleas and the agreement to pursue an insecticide-poisoning defense to child assault charges. When he changed his mind and pleaded guilty again in the same court-martial, the new agreement capped confinement at 30 years — and CAAF found nothing in R.C.M. 705 or case law forbidding the higher cap. The withdrawal was voluntary, made after full consultation with counsel, and its consequences had been spelled out in the original agreement and on the record.
One legacy-era case deserves a caution flag. United States v. Olson, 25 M.J. 293 (C.M.A. 1987) allowed a post-trial withdrawal of a plea where an unanticipated pay deduction defeated the accused’s good-faith belief that he had settled his debt to the government. Olson was decided under the old clemency-based system and is likely no longer good law, because under the 2016 MJA the convening authority fully performs on the agreement up front — there is no lingering post-trial performance for a surprise to defeat.
Withdrawal by the convening authority
The current rule lets the convening authority withdraw “at any time before substantial performance by the accused.” The phrasing is a deliberate change from the legacy rule, which cut off government withdrawal once the accused began performing — often by signing the stipulation of fact. The old rule protected an accused performing in reliance on promised post-trial clemency; the new one protects a convening authority who has already performed up front — by directing the court to sentence within the agreed limits — from an accused who pockets the limitation without substantially performing.
The legacy cases still teach how strictly courts police the government’s exit:
- Performance closes the door. Once the accused completed performance of the agreement as modified at trial, the convening authority could not unilaterally withdraw. United States v. Manley, 25 M.J. 346 (C.M.A. 1987); see also United States v. Dean, 67 M.J. 224 (C.A.A.F. 2009), strictly construing the rule.
- Before performance, the exit is real. Withdrawal was effective where the accused had not yet signed the proposed stipulation or requested witnesses (United States v. Pruner, 37 M.J. 573 (A.C.M.R. 1993)), and a convening authority could lawfully withdraw under pressure from the victim’s family where the accused had not relied on the deal to his detriment. United States v. Villareal, 52 M.J. 27 (C.A.A.F. 1999).
- No meeting of the minds. Where the judge’s inquiry disclosed that the parties had never agreed on a material term — a restitution obligation with no deadline — the government was entitled to withdraw. United States v. Williams, 60 M.J. 360 (C.A.A.F. 2004).
- A rejected plea can dissolve the deal. In United States v. Parker, 62 M.J. 459 (C.A.A.F. 2006), the judge properly rejected the accused’s plea to one offense during the providence inquiry, the government withdrew, and the case was tried — CAAF held no enforceable agreement remained. A deal built on admissions the accused cannot actually make is a deal waiting to dissolve, which is why the providence inquiry is where weak agreements go to die.
Breach by the accused
An accused’s failure to keep a material promise releases the government from its side of the bargain — but not informally, and not without process.
- Misconduct provisions. A term letting the convening authority disregard the sentence limitation if the accused commits new misconduct before action is enforceable, and a two-day unauthorized absence after trial was a material breach that released the convening authority. United States v. Bulla, 58 M.J. 715 (C.G. Ct. Crim. App. 2003). But before declaring the breach, the convening authority must hold a proceeding like the Article 72/R.C.M. 1109 vacation hearing and find the violation by a preponderance of the evidence — Bulla and United States v. Tester, 59 M.J. 644 (A. Ct. Crim. App. 2003) both insist on the procedure.
- Restitution failures. An accused who proposed full restitution as his own term, then paid only part before going broke, could not use indigency to nullify the term; the convening authority properly vacated the suspension. United States v. Mitchell, 46 M.J. 840 (N-M. Ct. Crim. App. 1997).
Remedies when a deal breaks
The remedy for a broken plea agreement depends on what broke. Four tools recur: declaring a term void, specific performance, withdrawal, and rescission.
- Unenforceable terms are severed, not fatal. When a term is unlawful — a speedy trial waiver, for example — the judge should declare that term void and unenforceable, uphold the remainder of the agreement, and ask the accused whether he wants to litigate the underlying issue. United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 1999). Whether the rest of the deal survives can turn on the agreement’s severance clause.
- Government failure gives the accused the choice. When the government fails to honor a material term, CAAF’s United States v. Lundy, 60 M.J. 52 (C.A.A.F. 2004) framework gives three options: specific performance of the term; withdrawal by the accused from the agreement; or alternative relief, if the accused consents to it. In Lundy itself — a promise of suspended reductions and forfeitures for the accused’s family that a personnel regulation blocked — the litigation ran for years until the Secretary of the Army granted a regulatory exception and paid the money, with interest, rather than see the findings set aside.
- Rescission unwinds everything. Where the defect goes to the heart of the bargain — no meeting of the minds on what the deal meant — the remedy can be rescission: findings and sentence set aside, the parties returned to the start.
What this means if your deal is in trouble
Do not self-help. If the government misses a term, the worst move is to stop performing your own promises — that converts their breach into yours. Document your performance, put the government’s failure in writing, and decide with counsel which remedy actually serves you: forcing the promise (specific performance), escaping the deal (withdrawal), or negotiating substitute relief. The options are yours to choose only while your own record is clean, which is why the first call when a deal wobbles should be to your defense lawyer, not to the trial counsel.
Post-trial defects and disagreements
Some deals fail only after the sentence is announced, when the parties discover they never understood the agreement the same way. The rule for that moment is R.C.M. 910(h)(3): if the parties disagree about a term after sentencing, the military judge shall “conform, with the consent of the Government, the agreement to the accused’s understanding or permit the accused to withdraw the plea.” In United States v. Dunbar, 60 M.J. 748 (A. Ct. Crim. App. 2004), a handwritten annotation left the parties disputing whether the convening authority could approve both a bad-conduct discharge and an other-than-honorable discharge; the judge did neither of the things the rule requires, and the court rescinded the agreement and set aside the findings and sentence.
Two more post-trial fault lines round out the map. First, vacation of a suspended sentence has its own procedural rights — courts doubt an agreement can waive the general court-martial convening authority’s review role in vacation proceedings, and a term purporting to shortcut Article 72 and R.C.M. 1109 will be read narrowly. United States v. Perlman, 44 M.J. 615 (N-M. Ct. Crim. App. 1996); United States v. Smith, 46 M.J. 263 (C.A.A.F. 1997). Second, the agreement’s aftermath plays out inside the ordinary post-trial process — entry of judgment, convening authority action, and clemency submissions — and a term that tried to sign away those post-trial rights was never enforceable to begin with.
Practitioner’s note
We treat every plea agreement as a document that will one day be read by someone looking for a way out — sometimes the government, sometimes our own client. So we build the exits in before signing: consequences of withdrawal spelled out, a severance clause, deadlines on every performance obligation, and a term-by-term record at trial of what each side understood. When a deal does break, the file we built is the remedy — in our experience the side that can document its own performance and the other side’s failure, in writing and in sequence, is the side that gets to choose between specific performance and walking away.
Video transcript
Transcript of the video “Court-Martial Plea Agreements Explained | When Should You Take a Deal?,” with Michael Waddington of Gonzalez & Waddington.
Read the full transcript of this video
What is a plea agreement in a court-martial, and when should you take one? It’s a written contract with the convening authority where you plead guilty to some or all charges in exchange for a limit on your sentence. And you should take one only when the evidence against you is strong, the deal meaningfully reduces your exposure, and your lawyer has tested the government’s case first. I’m Michael Waddington, civilian military defense lawyer and co-founder of Gonzalez & Waddington. Plea agreements resolve most courts-martial, and most of them are taken too early.
Here’s how they work and how to think about them. First, the mechanics. Under Rule for Courts-martial 705, you and the convening authority, or the special trial counsel for covered offenses, sign an agreement. You agree to plead guilty to specified charges. In return, the government agrees to something: a sentence cap, a sentence range, dismissal of other charges, referral to a lower court, or a specific sentence.
Since 2019, the agreement can set a minimum and maximum or a fixed sentence, and the judge is bound by it if the judge accepts the plea. Before 2019, these were called pre-trial agreements and worked differently, so ignore anything older than that. Second, what pleading guilty actually requires. At a court-martial, the judge conducts a providence inquiry under Rule 910. You have to explain, in your own words, under oath, exactly what you did and why it’s a crime.
If you can’t or won’t, the judge rejects the plea. There’s no Alford plea, no pleading guilty while maintaining innocence. That matters. If you didn’t do it, you can’t plead to it, and no deal changes that. Third, what you give up.
A plea waives your right to a trial, to confront the witnesses, to challenge the evidence, and to most appeals. A guilty plea to a covered sexual offense still means sex offender registration. A guilty plea at a special or general court-martial still means a federal conviction, with or without a punitive discharge. The cap limits the sentence. It doesn’t limit the consequences.
Now, when to take one. Four conditions. One, the evidence is strong. Not the prosecutor says it’s strong. Your lawyer has read the discovery, evaluated the witnesses, and run the suppression issues.
If the phone gets suppressed or the accuser’s story falls apart at the Article 32, the deal you were offered last month is the wrong deal now. Two, the deal is real. A cap at the maximum isn’t a deal. A cap that drops a general court-martial to a special with no discharge, or takes registration off the table by dropping the covered charge, or protects a retirement is. Three, the timing is right.
The government’s offers move. Early offers are often worse than what’s available after a strong Article 32 or a successful motion. The best plea agreements are negotiated from a position where the government believes it might lose. Four, you can say it. If you can’t tell the judge what you did, you can’t plead, and your lawyer shouldn’t be negotiating toward it.
When not to take one. When the government’s case has a hole your lawyer hasn’t finished exploiting. When the deal doesn’t change the consequence that matters most to you. Or when you’re taking it out of exhaustion rather than judgment. Exhaustion is a strategy the government counts on.
At Gonzalez & Waddington, we negotiate plea agreements in a large share of our cases, and almost none of them in the first month. The best deal comes after the government sees what a trial would cost them. So, what is a plea agreement and when should you take one? A contract that caps your sentence in exchange for a guilty and you take it when the evidence is strong, the deal is real, the timing is right, and you can honestly say you did it. I’m Michael Waddington with Gonzalez & Waddington.
We defend service members worldwide. You can learn more at ucmjdefense.com or call 1-800-921-8607 for a free, confidential consultation.
Frequently asked questions
Can I back out of a plea agreement after signing it?
Yes — the accused may withdraw from a plea agreement at any time before the sentence is announced, no cause required. But if the judge has already accepted your guilty plea, withdrawing the plea itself requires good cause and the judge's permission. And backing out has strategic costs: a second deal can lawfully carry a higher sentence cap than the first.
Can the convening authority cancel my plea deal?
Only within limits. The convening authority may withdraw at any time before you substantially perform your promises, and in certain other narrow situations — such as when the judge's inquiry reveals the parties never agreed on a material term. Once you have substantially performed, courts strictly construe the rule against a government exit.
What happens if the government breaks a promise in my plea agreement?
If the government fails to honor a material term, you choose among three remedies: specific performance of the promise, withdrawal from the agreement, or alternative relief you consent to. In one leading case the Army ultimately obtained a secretarial exception to a regulation and paid the promised money with interest rather than lose the conviction.
What if I commit misconduct after trial but before my case is finalized?
A misconduct provision can release the convening authority from the sentence limitation — even a two-day unauthorized absence has been held a material breach. But the government cannot simply declare you in breach: it must hold a hearing like a vacation proceeding and prove the violation by a preponderance of the evidence before disregarding the deal.
What happens if my lawyers and the prosecution disagree about what a term means after sentencing?
R.C.M. 910(h)(3) forces a choice: the military judge must either conform the agreement to your understanding, with the government's consent, or permit you to withdraw your plea. When a judge does neither, appellate courts have rescinded the agreement entirely and set aside the findings and sentence — which is why ambiguous terms are dangerous for everyone.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has litigated broken plea deals from every angle in more than 25 years of court-martial practice — enforcing government promises through specific performance, extracting clients from agreements that collapsed at the providence inquiry, and defending accused service members whose alleged post-trial misconduct put a negotiated sentence back in play. A former Army prosecutor and defense counsel who has tried cases worldwide, he drafts agreements with the breakdown in mind, because that is where he has seen deals decided.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent more than 20 years protecting clients when plea bargains wobble — documenting performance, forcing the government to honor sentence limitations, and advising accused service members on the real cost of withdrawing mid-trial. Her defense practice spans sexual assault, violent offense, and war crimes courts-martial worldwide, and she legally reviewed this page against R.C.M. 705(e)(4), R.C.M. 910(h), and the controlling CAAF decisions.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.