(dissenting).
I respectfully dissent. I disagree with the majority’s conclusion that this court lacks jurisdiction to consider respondent State of Minnesota’s appeal in this case. It is my view that, by operation of law, the prosecutor could not have consented to the plea agreement. Minnesota Rule of Criminal Procedure 15.07 prohibited the district court from accepting appellant’s guilty plea, and therefore jeopardy could not have attached.1 Consequently, Minn. R.Crim. P. 28.04, subd. 2(8), which prohibits the State from appealing after jeopardy attaches, does not bar the State’s appeal. Furthermore, because the plea agreement was void ab initio, the State was never bound to the terms of the agreement and thus may continue prosecution of Martinez-Mendoza.
The facts of this case are not in dispute, so I rely upon the majority’s recitation of the full facts. In brief, both parties proposed a plea agreement to the district court that would “DISMISS COUNT I @ sentencing middle of the box or 90 months commit to prison on COUNT II.”2 The State, appellant, and appellant’s lawyer all believed that count two would involve a sentence of close to 90 months in prison. The district court accepted the terms of the plea agreement on the basis of that understanding. The State then proceeded to examine appellant, and appellant admitted the facts necessary to establish his guilt of second-degree criminal sexual conduct. The court accepted the guilty plea. Upon learning of the mistake, the State made a motion to amend the complaint, or in the alternative, withdraw from the plea agreement. The court, concluding jeopardy had attached, denied the State’s motions. The State appealed the denial of its motions.
The threshold issue in this case is whether the State has a right to appeal the district court’s denial of its motion to withdraw from the plea agreement. In Minnesota, the State’s ability to appeal is limited — there must “be a statute or court rule that permits the appeal, or the issue must ‘arise by necessary implication’ from an issue where the State’s right to appeal is expressly provided.” State v. Rourke, 773 N.W.2d 913, 923 (Minn.2009) (quoting In re C.W.S., 267 N.W.2d 496, 498 (Minn.1978)). Minnesota Rule of Criminal Procedure 28.04, subd. 1(1), grants the prosecuting attorney the ability to appeal “in any case, 'from any pretrial order, including probable cause dismissal orders based on questions of law.” But, “[n]o appeal of a pretrial order by the prosecutor can be taken after jeopardy has attached.” Id., subd. 2(8). Jeopardy attaches when the jury is empaneled and sworn in or, in the case of a bench trial, when the court be*17gins to hear evidence. State v. Crow, 730 N.W.2d 272, 278 (Minn.2007) (quoting Serfass v. United States, 420 U.S. 377, 378, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975)). A void guilty plea cannot cause jeopardy to attach — the defendant would not have been placed in any peril of conviction. See Ohio v. Johnson, 467 U.S. 493, 501-02, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Crist v. Bretz, 437 U.S. 28, 35-38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Thus, I turn first to whether appellant’s guilty plea was valid.
A defendant may only plead guilty to a lesser charged offense with the prosecutor’s consent. Minn. R.Crim. P. 15.07. When reviewing plea agreements, we have consistently applied principles of contract law to determine the terms and validity of the agreement. In re Ashman, 608 N.W.2d 853, 858 (Minn.2000); State v. Williams, 418 N.W.2d 163, 168 (Minn.1988); see also Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Accordingly, an agreement that is contrary to established law and “ ⅛ injurious to the interests of the public or contravenes some established interest of society’ ” is void, consequently negating the consent to that agreement as well. Isles Wellness, Inc. v. Progressive N. Ins. Co., 725 N.W.2d 90, 92-93 (Minn.2006) (quoting In re Estate of Peterson, 230 Minn. 478, 483, 42 N.W.2d 59, 63 (1950)); see also Vercellini v. U.S.I. Realty Co., 158 Minn. 72, 74, 196 N.W. 672, 672 (1924) (“No transaction in violation of law can be made the foundation of a valid contract.”).
Here, the agreement called for the imposition of a 90-month executed prison sentence for a crime that carried a 36-month stayed sentence. But, the 90-month prison sentence was illegal as it would be an invalid upward departure from the presumptive sentence. Minn. Sent. Guidelines II.D; State v. Edwards, 774 N.W.2d 596, 601 (Minn.2009). Accordingly, the plain terms of the plea agreement were contrary to existing law and contravened the public’s interest in a fair sentencing scheme. Minn. Sent. Guidelines I. Thus, the plea agreement was void from inception, negating the prosecutor’s consent to the agreement.3 Consequently, Martinez-Mendoza’s guilty plea was not valid because it did not meet the requirements of Minn. R.Crim. P. 15.07.4
*18Because his guilty plea was not valid, Martinez-Mendoza was never placed in jeopardy as he was never validly adjudicated. Accordingly, the State’s appeal is not barred by Minn. R.Crim. P. 28.04, subd. 2(8), and Minn.Stat. § 609.04, subd. 1 (2010), does not require the dismissal of count one. More importantly, however, the plea agreement was void ab initio; thus, the State does not need the court’s permission to withdraw from the plea agreement because it was never legally bound in the first place. Consequently, I would remand the case to the district court for further proceedings on the charges alleged in the complaint.
. Minnesota Rule of Criminal Procedure 15.07 provides, “With the prosecutor’s consent and the court’s approval, the defendant may plead guilty to a lesser included offense or to an offense of lesser degree.”
. In the plea petition, the parties described the agreement as 90 months or the middle of the box. Appellant argues that the plain language of the agreement is legally possible because “middle of the box” can refer to the 3 6-month presumptive sentence even though no range is given in the presumptive sentence. But, appellant previously conceded to the district court at the investigative hearing that the contemplated prison sentence in the plea agreement "would be a 90-month commit to the Commissioner of Corrections.” In light of that concession, appellant’s “middle of the box” argument is riot persuasive and the agreement clearly meant for a 90-month executed prison sentence.
. Alternatively, contract law offers another theory under which the plea agreement could be void. Here, the parties were mistaken as to the length of the applicable sentence and it is clear that there was no "meeting of the minds” or mutual assent to a 36-month stayed sentence. See Houghton v. Mendenhall, 50 Minn. 40, 45, 52 N.W. 269, 270 (1892) (stating that a contract is void "where the mistake is of such a nature as to exclude any real consent of the parties; their minds not meeting in agreement upon the same matters”). Although we have applied a mutual mistake analysis to grant relief from a sentence, see State v. DeZeler, 427 N.W.2d 231 (Minn.1988), it is not necessary to apply that doctrine here to resolve this matter.
. I recognize that Minn. R.Crim. P. 15.07 allows a court to, upon defendant’s motion and after a hearing, accept a defendant’s guilty plea to an offense of a lesser degree without the prosecutor’s consent if “the court is satisfied that the prosecutor cannot introduce sufficient evidence to justify the submission of the offense charged to the jury or that it would be a manifest injustice not to accept the plea.” But, the defendant did not make a motion to plead guilty to a lesser offense without the prosecutor’s approval. Consequently, the court did not hold a hearing to determine the merits of such a motion. Thus, the technical requirements of the rule were not met and the court did not have the authority to accept the plea agreement without the prosecutor's consent. Furthermore, the court stated on the record that it would not have accepted the guilty plea had it known the true sentence length; therefore, no legitimate argument can be made that a manifest injustice would have resulted had the court not accepted the plea agreement.