"What is the proper remedy when the defendant and the State 'charge bargain' for an open plea of guilty to a lesser-included offense and the trial judge imposes an illegal sentence?"
Thomas was charged with third-degree felony engaging in organized criminal activity, with state-jail felony theft as the underlying offense. The State sought a punishment enhancement based on two prior convictions, a felony and a state-jail felony. In exchange for Thomas' guilty plea, the State agreed to reduce the charge to the lesser-included theft, enhanced by the two priors, which the parties believed subjected him to second-degree felony punishment. Thomas pled guilty and true, and the trial court assessed his punishment at 20 years.
The court of appeals held that the state-jail theft offense could not be properly enhanced with a felony and a state-jail felony, so the resulting sentence was illegal. As a result, it affirmed the theft conviction, reversed on punishment, and remanded for re-sentencing.
The State contends the proper remedy for an illegal sentence that results from a plea bargain or charge bargain is to set aside the entire plea and return the parties to their original positions. It argues that setting aside only the punishment in this case gives Thomas the windfall of an unenhanced state-jail felony and forecloses prosecution for the original charge, a third degree felony with an enhanced punishment.