Charles William Pratt v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-148-CR

CHARLES WILLIAM PRATT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court #3

Dallas County, Texas

Trial Court # F-94-38996-UJ

O P I N I O N

Charles Pratt pleaded guilty to burglary of a building other than a habitation, a state jail felony, and the court assessed the agreed punishment of twenty-five years incarceration under the habitual offender provisions of the Penal Code. Tex. Penal Code Ann. 12.42(d), 30.02(a)(1), (c)(1) (Vernon 1994). // He brings one point of error, claiming that his punishment is unauthorized and prays that we remand for punishment. The State concedes error, and asks that we remand the cause for resentencing. After concluding that we have jurisdiction over this appeal, we sustain Pratt's point and reverse the judgment.

Because Pratt plead guilty in exchange for a recommendation as to punishment from the State, which the court followed, he must have either complied with rule 40(b)(1) or raise jurisdictional complaints before we can exercise jurisdiction over his appeal. Tex. R. App. P. 40(b)(1); Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 114 S. Ct. 2684, 129 L. Ed. 2d 816 (1994); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994). He obtained permission from the trial court to appeal the enhancement of his sentence and his notice of appeal reflects the court's permission; thus, he has complied with the Rules of Appellate Procedure. Id.; Jones v. State, 796 S.W.2d 183, 186 (Tex. Crim. App. 1990). //

The State concedes that Pratt's sentence is invalid. State v. Mancuso, No. 604-95, slip op. at 7, 1996 WL 71519 *3-4 (Tex. Crim. App. February 21, 1996). It requests that we remand this cause for resentencing. However, "in plea bargain situations where specific performance is not an alternative, the only remedy is to order the plea withdrawn and to return the parties, including the State, to their original positions." Heath v. State, 817 S.W.2d 335, 340 (Tex. Crim. App. 1991) (emphasis added); also State v. Lewis, No. 05-95-00718-CR, slip op. at 2, 1996 WL 44158 *1 (Tex. App. Dallas, February 5, 1996, no pet. h.). To reverse only the sentencing is neither logical nor fair. Shannon v State, 708 S.W.2d 850, 852 (Tex. Crim. App. 1986).

Pratt's sole point of error is sustained. His conviction and sentence are reversed and this cause is remanded for further proceedings consistent with this opinion.

PER CURIAM

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed May 1, 1996

Do not publish