concurring:
I concur in the analysis and the result reached in Judge Cook’s opinion, but because my complete concurrence is in part based on the particular facts in this case, some additional comment is necessary regarding the providence of the plea in light of our dismissal of four specifications and the resultant change in the maximum legally imposable sentence. In those cases in which the maximum sentence to confinement is reduced on appeal because of a subsequent change in the law or an appellate ruling that certain offenses should be considered multiplicious for sentencing purposes, I would look to the sentence limitations imposed by a pretrial agreement to determine whether any misunderstanding on the part of the appellant was both substantial and a producing cause of the plea. See, e. g., United States v. Walls, 3 M.J. 882 (A.C.M.R.1977), pet. granted, 4 M.J. 196 (C.M.A.1978); United States v. Montiel, 3 M.J. 873 (A.C.M.R.1977); United States v. Brotherton, 2 M.J. 843 (A.C.M.R.), pet. denied, 16 July 1976; see also United States v. Castrillon-Moreno, 3 M.J. 894 (A.C.M.R.), pet. granted, 4 M.J. 94 (C.M.A.1977).
In this case the error upon which appellate relief has been granted is jurisdictional, and should have been discovered and corrected at the trial level. This case is, therefore, more analagous to United States v. Bowers, 1 M.J. 200 (C.M.A.1975), which held that, if a sentence misunderstanding existed at the time the pretrial agreement was negotiated, the plea entered on the basis of that agreement is improvident. The facts in Bowers involved a misapplication of the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition), an error which also existed and should have been corrected at trial.
Accordingly, because of the nature of the error involved in this case; the fact that, in addition to misadvice concerning the sentence, four specifications should not have been charged; and the substantial disparity in maximum sentence, the appellant must be permitted to plead again.