Rhodes, Terry

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1597-05, PD-1598-05, PD-1599-05

TERRY RHODES, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

WALKER COUNTY

Keller, P.J., delivered the opinion of the Court in which Keasler,

Hervey, Holcomb and Cochran, JJ., joined. Meyers, Womack and Johnson, JJ.,

joined Parts I and IIA and dissented to Part IIB. Price, J., filed a dissenting opinion.

We must determine whether a defendant may collaterally attack a prior judgment of conviction used

to enhance a new offense, in the trial of that new offense, on the ground that the prior judgment was too

lenient. We hold that he cannot.

I. BACKGROUND

A. Trial

Appellant was serving time in prison for burglary (three years) and aggravated sexual assault (forty-five years). He was bench-warranted to Smith County to answer for a theft offense. While in the Smith

County jail, he escaped. He was ultimately convicted on both the theft and escape charges. He was

sentenced to two years in state jail for the theft and ten years in prison for the escape. The escape sentence

was ordered to be run concurrently with the theft sentence. The written judgment for the escape conviction

is silent as to whether the escape sentence was to run concurrently to or consecutively with appellant's prior

burglary and aggravated sexual assault sentences. This written judgment is also silent concerning whether

or not there was a plea agreement.

Appellant later committed more crimes and was ultimately charged with new felony offenses of

escape, burglary of a habitation, and theft. The State alleged two prior judgments of conviction for

enhancement purposes. (1) One of those prior judgments was for the Smith County escape case. Appellant

filed a motion to quash that enhancement allegation. Relying upon Article 42.08 of the Code of Criminal

Procedure, he claimed that the judgment was void because the escape sentence was run concurrently with

his other sentences when the statute required that it be cumulated with the earlier burglary and sexual assault

sentences he was serving at the time he committed the escape. (2)

The State presented three responses to appellant's claim: (1) Article 42.08(b) did not require the

escape judgment to be stacked because appellant was not actually "in" the prison system at the time of the

escape, since he had been bench-warranted to the Smith County jail. (2) Even if the judgment had to be

stacked, the absence of stacking did not make the judgment void and the deficiency could be corrected

in a nunc pro tunc order. (3) Equitable notions of justice should prevent the defendant from gaining the

benefit of concurrent sentencing and then turning around to complain about it later.

The trial court denied appellant's motion, the enhancement allegations were subsequently found to

be true, and appellant was sentenced as an habitual offender on all three offenses, receiving sentences of

thirty-three years, twenty-five years, and twenty-five years, respectively.

B. Appeal

In his sole point of error on appeal, appellant re-urged his contention that the Smith County escape

judgment was void. In response, the State re-urged the first argument it had made at trial. (3) The court of

appeals found that Article 42.08(b) required that the sentence for the Smith County escape be stacked onto

the sentence for the prior aggravated sexual assault, (4) and it found that the failure to stack rendered the prior

judgment void and thus unusable for enhancement purposes. (5) As a result, the court of appeals reversed

the judgment of the trial court and remanded the case for a new punishment hearing. (6)

The State filed a motion for rehearing, repeating its original argument and making the following

additional arguments: (1) a prior conviction can be valid for enhancement purposes even if the sentence

is void, (2) the trial court had no evidence before it that appellant met the criteria outlined in Article

42.08(b), (3) appellant bargained for the punishment obtained and cannot now complain of an action he

earlier requested, and (4) a cumulation order is not part of the sentence. Appellant filed a response to the

State's motion. In responding to argument (3) above, appellant acknowledged that he "did enter into a plea

bargain for his sentence in the Smith County escape case" but claimed that he did not "invite" the error as

a result. The motion for rehearing was denied.

En banc consideration was also requested but denied. In an opinion dissenting from the denial of

en banc consideration, Justice Keyes argued that a cumulation order is not part of a sentence, so its

absence could not render a sentence void. (7)

C. Discretionary Review

In its petition for discretionary review, the State raises several issues, which can be summarized as

follows: (1) whether appellant was estopped from complaining that his sentence was illegal, (2) whether

a defendant's constitutional rights would be violated by a nunc pro tunc order that would make the

sentences run consecutively, (3) what is the legal effect of a failure to order a sentence to run consecutively

as required by Article 42.08(b), and (4) what amount of evidence is required to invoke the mandatory

provisions of Article 42.08(b). (8)

In arguing the estoppel question, the State claims that appellant entered into a plea agreement for

his sentence on the Smith County escape charge. In his response brief, appellant contends that there is no

evidence in the record to prove that his conviction was the result of an agreement. (9) Our review of the trial

record in the present case reveals that there was indeed no indication that the parties entered into a plea

agreement. The trial record contains no court reporter's record or plea papers that might have shed light

on whether a plea agreement existed, and the trial record does not otherwise contain any indication of a

plea agreement. However, nothing in the trial record specifically refutes the existence of a plea agreement

either, and as we observed above, appellant conceded the existence of a plea agreement in a pleading

before the court of appeals. But even if we assume there was a plea agreement, we have no information

concerning its terms, and more specifically, whether the terms included concurrent sentencing, unless we

construe the State's contention that there was a plea agreement as an admission (10) to that effect. (11)

II. ANALYSIS

We need not decide whether to treat this case as involving a plea agreement with respect to the

concurrent sentencing issue. As we shall explain, if there was no plea agreement on the concurrent

sentencing issue, then the judgment is not void, and thus not subject to collateral attack, because it was at

some point in time subject to reformation. (12) If there was a plea agreement on the concurrent sentencing

issue, then appellant is estopped from challenging the judgment. We detail our reasoning on these points

below.

A. No Agreement Means Judgment Is Not Void

Appellant's challenge to the enhancement allegation in this case constitutes a collateral attack on

the prior judgment of conviction. (13) Such a collateral attack is permitted only if the prior judgment is void,

and not merely voidable. (14)

Initially, we point out that there is a difference between an entire judgment being "void" and a

portion of a judgment being "void." For example, a judgment may contain two or more sentencing

elements (e.g. imprisonment and fine), one of which may be valid while the other is void. (15) When only one

of the sentencing elements is void, the judgment is rendered void only if the judgment cannot be reformed

to cure the infirmity (i.e. the infirmity cannot be cured without resort to resentencing). (16) Some cases

addressing other types of judgment defects have likewise indicated that the judgment is not void if the defect

could have been reformed on the direct appeal of the judgment in question (17) or in a nunc pro tunc order. (18)

This Court has addressed at least three different curable judgment defects relating to punishment

that arose from a contested trial, in which there was no plea agreement. In Williams v. State , we

confronted on direct appeal a claim that a cumulation order was void. (19) We agreed, and we deleted the

cumulation order but otherwise affirmed the conviction. (20)

In Ex parte Johnson , an applicant claimed on habeas corpus that his conviction for aggravated

robbery was void because it contained an unauthorized fine. (21) The jury had rendered a verdict assessing

punishment at fifty years of confinement and a $10,000 fine, but according to the habitual-sentencing statute

under which the applicant was punished, no fine was authorized. (22) We held that the trial court was

empowered to reform the judgment by deleting the unauthorized fine. (23) In Barker v. State , the

defendant did what appellant did here: he challenged a prior conviction used for enhancement purposes at

the trial of a new offense. (24) He claimed that the prior judgment was void because, in addition to a valid

three-day jail sentence and fifty-dollar fine, the judgment contained an invalid provision commuting the

sentence to a six-month term of probation. (25) We rejected the defendant's contention. (26) First, we relied

upon Ex parte King for the proposition that "a judgment or sentence containing an irregularity which may

be reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked." (27)

Second, we cited Lenore v. State for the proposition that "a prior judgment providing for a fine of $25

when the minimum punishment provided by law was a $100 fine was erroneous, but not void, and was

available for enhancement of punishment in a prosecution for a subsequent offense." (28)

Clearly, where concurrent sentencing is not a part of a plea agreement, reforming the judgment to

make the sentence consecutive can be accomplished without resort to resentencing. We have already held

that a cumulation order can be deleted without disturbing the remainder of the judgment. Imposing a

cumulation order where one is required is simply the flip side of the coin. This type of situation does not

involve a range of valid possible punishment options that would require a new sentencing hearing to be held.

If concurrent sentencing between two sentences (here the escape and the prior aggravated sexual assault)

is invalid, then only one valid option remains (consecutive sentencing), making reformation possible, at the

very least, on direct appeal.

We need not decide whether the defect here is itself of the void or voidable variety, (29) whether it

is even voidable at all, (30) or whether a cumulation order (or lack thereof) is part of the "sentence." (31)

However one characterizes the defect of failing to cumulate appellant's sentence in the prior escape

judgment, the reformable nature of the defect means that it cannot render the prior judgment void. (32) B. Agreement Means Appellant Is Estopped from Challenging the Judgment

This Court has not, in a majority opinion, addressed the application of the estoppel doctrine in

circumstances such as these. But the issue was discussed in a plurality opinion on rehearing in Heath v.

State (33) and in a concurring opinion in Ex parte Williams , (34) both of which involved a defendant challenging

a prior plea-bargained judgment of conviction on the ground that the trial judge imposed probation without

the authority to do so. (35) The Heath plurality decided that the doctrine of estoppel would not bar a plea-bargaining defendant's challenge to an illegal sentence. (36) By contrast, the Williams concurrence concluded

that the plea-bargaining defendant in that case was estopped from challenging the trial court's judgment

because he had accepted the benefits of probation. (37) Although a majority of the Court in Williams chose

to deny relief upon a different ground, (38) this Court has subsequently suggested that the estoppel issue raised

by the concurring opinion is an open question. (39)

An examination of the plurality opinion in Heath reveals that its holding on the estoppel issue was

based upon a faulty premise. Immediately before reaching its conclusion, the plurality discussed Shannon

v. State . (40) The Heath plurality pointed out that, in Shannon , the defendant was sentenced to two years of

confinement in accordance with a plea agreement, but he contended on appeal that the offense for which

he was sentenced was actually a Class A misdemeanor with a maximum punishment of one year. (41) The

court of appeals in Shannon agreed, but remanded the case for resentencing. (42) In a petition for

discretionary review, the State correctly argued that because there was a plea bargain, the proper remedy

was to undo the entire plea. (43) We agreed. (44) The court of appeals in Shannon had erroneously applied to

the negotiated plea setting the rule that error affecting only punishment results in only a new sentencing

hearing. (45)

The Heath plurality then made an illogical leap: it assumed that the mistake made by the court of

appeals in Shannon (which never applied the doctrine of estoppel) was somehow an assumption underlying

the doctrine of estoppel. (46) Without any explanation other than the unsupported assumption that Shannon

somehow had something to do with the issue at hand, the Heath plurality reached the odd conclusion that

applying estoppel to bar a plea-bargaining defendant's complaint about an illegally lenient sentence would

result in "treating those errors as punishment errors only" and somehow involving resentencing. But this

proposition makes no sense. The Heath plurality took the premise that it is unfair to bind just one party to

a plea bargain, and concluded from this that when a sentence is void, both parties must be unbound from

the plea bargain. The alternative the Heath plurality overlooked was that both parties could be bound by

the plea bargain - which is precisely what estoppel would accomplish. We thus conclude that the Heath

plurality lacks persuasive force.

Acknowledging a "dearth of Texas caselaw" on the subject, (47) the Williams concurrence cited

Prystash v. State , (48) which applied to the somewhat different "invited error" context, and out-of-state cases

that were more on point. (49) We now turn to a full examination of the authorities relating to this subject.

We have previously dealt in Prystash v. State with a type of estoppel involving unilateral requests

that result in "invited error," but estoppel is a flexible doctrine that manifests itself in various forms that are

not limited to unilateral requests. The variant of estoppel at issue here is "estoppel by judgment." (50) In this

type of estoppel, "[o]ne who accepts the benefits of a judgment, decree, or judicial order is estopped to

deny the validity or propriety thereof, or of any part thereof, on any grounds; nor can he reject its

burdensome consequences." (51) The only exception to this principle is for challenges to the subject-matter

jurisdiction of the court rendering the judgment. (52)

Moreover, a close cousin of "estoppel by judgment" is "estoppel by contract," where a party who

accepts benefits under a contract is estopped from questioning the contract's existence, validity, or effect. (53)

So estoppel can apply not only to unilateral requests (as in Prystash ), but also in the context of agreements,

where the "request" is mutual. As is true with most contracts, it is typical that both parties to a plea bargain

will benefit from the judgment.

Indeed, courts in several other jurisdictions have held that a defendant cannot enter a plea agreement

that imposes an illegal sentence, benefit from that sentence, and then attack the judgment later when it is

suddenly in his interests to do so. (54) In rejecting a defendant's claim for overturning a too-lenient, illegal

sentence, the Mississippi Court of Appeals anticipated exactly what applicant wishes to accomplish in the

present case:

On the other hand, a defendant should not be allowed to reap the benefits of an illegal

sentence, which is lighter than what the legal sentence would have been, and then turn

around and attack the legality of the illegal, lighter sentence when it serves his interest to do

so. Allowing such actions would [wreak] havoc upon the criminal justice system in this

state. For example, all subsequent convictions and sentences of that defendant which are

reliant upon the conviction concomitant with the illegal sentence would have to be set aside.

This would result in a number of enhanced and habitual offender sentences being set aside

for the very offender who had already enjoyed greater leniency than the law allows. (55)

For the same reasons, that court refused to grant relief in a later case when the defendant challenged a prior

unauthorized probation after it had been revoked and used to enhance a later offense. (56)

We find these cases persuasive. A defendant who has enjoyed the benefits of an agreed judgment

prescribing a too-lenient punishment should not be permitted to collaterally attack that judgment on a later

date on the basis of the illegal leniency. (57) Here, appellant received a judgment that was illegally lenient by

having his sentence run concurrently instead of consecutively. Had he complained about the illegal leniency

at the time of trial, or even on direct appeal, the State could likely have obtained a legal judgment that would

now be available for enhancement purposes. But instead, appellant quietly enjoyed the benefits of the

illegally lenient judgment, challenging it now only because, due to his own subsequent criminal conduct, the

judgment can be used to enhance his punishment for a new offense. If he agreed to the concurrent

sentencing provision, then through his own conduct he helped procure and benefit from the illegality and he

should not now be allowed to complain.

The judgment of the court of appeals is reversed, and the judgment of the trial court is affirmed.

Delivered: November 7, 2007

Publish

1. See Tex. Pen. Code §12.42(d).

2. Article 42.08(b) provides: "If a defendant is sentenced for an offense committed while the

defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the

defendant has not completed the sentence he was serving at the time of the offense, the judge shall order

the sentence for the subsequent offense to commence immediately on completion of the sentence for the

original offense."

3. The court of appeals found that the State conceded in its brief that, under Fullbright v. State ,

818 S.W.2d 808, 810 (Tex. Crim. App. 1991), "if the trial court erred in failing to stack the Smith County

escape sentence, then it cannot rely upon that conviction to enhance Rhodes's convictions that are on

appeal here." Rhodes v. State , 175 S.W.3d 348, 352 (Tex. App.-Houston [1 st Dist.] 2004). In its brief,

the State said, "The State does not disagree with the Appellant on the nature of the law as to the use of

convictions for purposes of enhancements as stated in Fulbright v. State ." We are uncertain that this

concession is as expansive as the court of appeals has characterized it, but in any event, we are not bound

by a party's concession on a matter of law. Long v. State , 931 S.W.2d 285, 289 (Tex. Crim. App.

1996).

4. Because appellant was serving time for both the burglary and the aggravated sexual assault

offenses at the time of the escape, Article 42.08 required the escape sentence to be stacked on the much

longer sentence for the aggravated sexual assault conviction because it would be the last to terminate. See

Basden v. State , 897 S.W.2d 319 (Tex. Crim. App. 1995).

5. Rhodes , 175 S.W.3d at 350-55 .

6. Id. at 355 .

7. Id. at 356-59 (Keyes, J., dissenting from denial of en banc consideration).

8. The State's grounds for review are as follows:

First: This Court needs to decide whether a defendant can be estopped from complaining

about an error capable of rendering a judgment or sentence void.

Second: This Court needs to decide whether a defendant can be estopped from

complaining, after he enjoyed its benefits, that his sentence was illegal or void because it

was below the statutory minimum.

Third: This Court needs to decide whether a defendant's constitutional rights are violated

when a trial court corrects a clerical error by changing a concurrent sentence to a

statutorily mandatory consecutive sentence years after the defendant has begun to serve

the sentence.

Fourth: This Court needs to determine the legal effect of the failure to order a sentence to

run consecutively as ordered by 42.08(b) of the Texas Code of Criminal Procedure.

Fifth: This Court needs to make a practical review of the question of what amount of

evidence is required to invoke the mandatory provisions of Article 42.08(b).

9. Appellant's main argument in his response brief is that the State forfeited review of its current

claims by failing to raise them on original submission to the court of appeals. Arguably, the State's fifth

ground for review is an extension of the arguments it did present on original submission to the court of

appeals. Nevertheless, because the State prevailed at trial, we may in our discretion address subsidiary

arguments that support the trial court's ruling that were not presented to the court of appeals. Volosen v.

State , 227 S.W.3d 77, 80 (Tex. Crim. App. 2007).

Judge Price contends that Volosen 's holding is inconsistent with prior holdings in Rochelle v. State ,

791 S.W.2d 121 (Tex. Crim. App. 1990), and Sotelo v. State , 913 S.W.2d 507 (Tex. Crim. App. 1995),

and he contends that the holdings in those latter cases would bar our disposition of the current case. But

Rochelle and Sotelo are distinguishable because, in both cases, the petitioner's ground for review did not

challenge any holding of the court of appeals, while Volosen and the present case involve grounds that do

challenge a holding of the court of appeals, but for reasons not addressed by the lower appellate court.

In Rochelle , the State advanced a procedural default ground for review that did not challenge the

court of appeals's holding that the indictment was fatally defective. 791 S.W.2d at 122, 125 . In Sotelo ,

the defendant's claim that a remand for a new punishment hearing violated double jeopardy principles was

not a challenge to the court of appeals's holding that the trial court had erroneously quashed the State's

enhancement allegations. 913 S.W.2d at 508-09 . By contrast, in Volosen , the State's grounds for review

directly challenged the court of appeals's holding that the evidence was legally insufficient to support the

defendant's conviction because the defendant had established a defense as a matter of law - though the

argument supporting the State's challenge had not been considered by the court of appeals. 227 S.W.3d

at 79-80 . Similarly, in the present case, the arguments we consider today respond directly to the court of

appeals's holding that the prior conviction was not available for enhancement purposes, although those

arguments were not discussed in the court of appeals's opinion.

This is the same sort of position the parties are in when the case is before a court of appeals. The

party who loses at the trial level must address both the trial court's ruling and the rationale for that ruling,

see Tex. R. App. P. 33.1(a)(1)(A)(party complaining about trial proceedings must have stated grounds for

ruling), (2)(A)(party complaining about trial proceedings must have obtained a ruling), but the party who

wins at the trial level can prevail on appeal on the basis of a rationale not addressed by the trial court, see

State v. Herndon , 215 S.W.3d 901 , 905 n.4 (Tex. Crim. App. 2007)("the general rule is that a trial

court's ruling will be upheld if it is correct on any applicable legal theory, even if the court articulated an

invalid basis"). The point of Volosen is that the parties' positions in this regard are fixed at trial and do not

change during the subsequent course of appellate litigation. Thus, the party who loses at the trial level who

then complains about a decision of the court of appeals must address both the holding and the reasoning

of the court of appeals, but the party who wins at the trial level who complains about a decision of the court

of appeals need only address the holding of the court of appeals.

10. An agreement to concurrent sentencing would be to the State's disadvantage if estoppel does

not apply, because if there is no agreement, then the sentence is reformable. See discussion below.

11. Although the ten-year sentence for the Smith County escape was the maximum for a third-degree felony, the record suggests that the offense could have been enhanced to a second-degree felony

with either the prior burglary or the prior sexual assault conviction. See Tex. Pen. Code

§12.42(a)(3)(West 1998).

12. Because of this holding, we need not address whether a defendant could be estopped to attack

a judgment even when there was no plea agreement.

13. New v. State , 583 S.W.2d 781, 782 (Tex. Crim. App. 1979).

14. Id.

15. See Ex parte Johnson , 697 S.W.2d 605 (Tex. Crim. App. 1985)(imprisonment was within

the range of punishment, but fine exceeded the range of punishment).

16. Id. at 607-08 ; Barker v. State , 169 Tex. Crim. 277, 278-79 , 334 S.W.2d 182, 183-84

(1960).

17. Rhodes v. State , 560 S.W.2d 665, 667 (Tex. Crim. App. 1978)(quoting Barker , 169 Tex.

Crim. at 279 , 334 S.W.2d at 184 )("A judgment or sentence containing an irregularity which may be

reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked.");

Smotherman v. State , 383 S.W.2d 929, 931 (Tex. Crim. App. 1964)("could have been reformed in a

proper proceeding"); Ex parte Brown , 145 Tex. Crim. 39, 42 , 165 S.W.2d 718, 720 (1942)("upon the

original appeal of this case, it could have been reformed").

18. Rhodes , 560 S.W.2d at 667 .

19. 675 S.W.2d 754, 760 (Tex. Crim. App. 1984).

20. Id.

21. 697 S.W.2d at 605 .

22. Id.

23. Id. at 607-08.

24. 169 Tex. Crim. at 278 , 334 S.W.2d at 183 .

25. Id.

26. Id. at 279, 334 S.W.2d at 184 .

27. Id. (citing Ex parte King , 156 Tex. Crim. 231 , 240 S.W.2d 777 (1951)).

28. Id. (citing Lenore v. State , 137 Tex. Crim. 413 , 129 S.W.2d 657 (1939)).

29. See Ex parte Townsend , 137 S.W.3d 79, 80-82 (Tex. Crim. App. 2004)(challenge to stacking

order as invalid due to defendant's status not cognizable on habeas corpus when it could have been raised

on direct appeal).

30. See Langs v. State , 183 S.W.3d 680, 686 (Tex. Crim. App. 2006)(double jeopardy, multiple

punishment violation can be forfeited when the violation is not clear on the face of the record and forfeiture

would serve the interests underlying the rules of procedural default).

31. See State v. Ross , 953 S.W.2d 748, 750 (Tex. Crim. App. 1997)(for purpose of State's

appeal, "sentence" includes whether the term of imprisonment is concurrent); but see Speth v. State , 6

S.W.3d 530, 535 (Tex. Crim. App. 1999)(Womack, J., concurring)(criticizing use of statutory definition

of "sentence" to determine what this Court means when it says a sentence is void).

32. We need not and do not decide whether the State now has any remedy that would enable it to

cumulate the prior escape sentence, or whether the State's own use of the prior judgment to enhance the

current offense would estop the State from utilizing such a remedy.

33. 817 S.W.2d 335, 337-40 (Tex. Crim. App. 1991)(plurality opinion on rehearing).

34. 65 S.W.3d 656, 658-60 (Tex. Crim. App. 2001)(Keller, P.J., concurring).

35. See Heath and Williams , supra . The opinion on original submission in Heath has been

overruled on the basis that probation is not a part of the sentence. Williams , 65 S.W.3d at 657-58

(Court's op.).

36. 817 S.W.2d at 340 .

37. 65 S.W.3d at 658-60 (Keller, P.J., concurring).

38. Id. at 658 (Court's op.)("probation" is not part of the sentence and the defendant failed to show

harm).

39. Mizell v. State , 119 S.W.3d 804 , 806 n.8 (Tex. Crim. App. 2003)(citing concurrence in

Williams and citing Collins v. State , 509 N.E.2d 827 (Ind. 1987)).

40. Heath , 817 S.W.2d at 339-40 (discussing Shannon v. State , 708 S.W.2d 850 (Tex. Crim.

App. 1986)).

41. Id. at 339 (citing Shannon ).

42. Id. at 339-40 (citing Shannon , 708 S.W.2d at 851 ).

43. Id. at 340 (citing Shannon , 708 S.W.2d at 851 ).

44. Id.

45. Id.

46. See Heath , 817 S.W.2d at 340 .

47. Williams , 65 S.W.3d at 659 (Keller, P.J., concurring).

48. 3 S.W.3d 522 (Tex. Crim. App. 1999).

49. See Williams , 65 S.W.3d at 658-660 .

50. 31 C.J.S. Estoppel & Waiver §130.

51. Id. , p. 565.

52. Id. , p. 566; see also Williams , 65 S.W.3d at 659-60 (Keller, P.J. concurring)(discussing

cases).

53. 31 C.J.S. Estoppel & Waiver §124, p. 554.

54. People v. Hester , 22 Cal. 4 th 290, 295, 992 P.2d 569, 572 (2000)("defendants who have

received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better

the bargain through the appellate process"); Collins , 509 N.E.2d at 833 ("a defendant may not enter a plea

agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an

illegal sentence"); Punta v. State , 806 So. 2d 569 , 570 2002 (Fla. 3 rd DCA 2002) (quoting Bashlor v.

State , 586 So. 2d 488 (Fla. 1 st DCA 1991))("sentences which are imposed in violation of statutory

requirements, which are to the benefit of the defendant and to which he agreed, may not be challenged after

the defendant has accepted the benefits flowing from the plea, but has failed to carry out the conditions

imposed on him"); Graves v. State , 822 So. 2d 1089, 1091 (Miss. App. 2002)(defendant "cannot stand

mute when he is handed an illegal sentence which is more favorable than what the legal sentence would

have been, reap the benefits of that illegal sentence, and later claim to have been prejudiced as a result

thereof"); Pruit v. State , 846 So. 2d 271, 274 (Miss. App. 2002)("A convicted felon may not quietly

enjoy the benefits of an illegally lenient sentence, and later attack the sentence when suddenly it is in his

interest to do so").

55. Graves , 822 So. 2d at 1092 .

56. Pruit , 846 So. 2d at 274 .

57. We express no opinion today on whether estoppel could apply to bar a challenge to a judgment

imposing a punishment that is illegally harsh , nor do we express an opinion on whether estoppel would bar

a direct attack on a judgment imposing an illegally lenient punishment. See Williams , 65 S.W.3d at 660

(Keller, P.J., concurring)(observing that it could be persuasively argued that a defendant who appeals his

conviction has not yet accepted the benefits of the illegal judgment).