concurring in part and dissenting in "part:
I concur with Part II of the majority’s opinion that the district court’s suspended sentence was an improper sentence. The majority concludes that Chae’s plea must be vacated because the district court’s illegal sentence was an integral part of the plea agreement. See maj. op. at 485. I dissent because I believe that under the facts of this case Chae entered a knowing and voluntary plea, and the court’s illegal suspended sentence did not invalidate the voluntariness of the plea. After a Crim.P. 35(c) hearing, the court corrected the illegality in the sentence and the defendant received the sentence he had bargained for at the time of the plea.
I.
On May 22, 1984, during the trial on the original charges, defendant Byong Choi Chae (Chae) entered into a plea bargain in which he pled guilty to second-degree sexual assault. In return the district attorney recommended that the court impose an eight-year prison sentence, and suspend the sentence conditioned on Chae’s surrender to immigration authorities and submission to deportation proceedings.1 Through this agreement Chae avoided the possibility of being convicted and serving a maximum sentence of forty-eight years. The record shows that Chae thoroughly understood the terms of the plea agreement and the rights he was giving up by pleading guilty.2 Chae understood that, under the agreement, if he did not submit to deportation the district court could sentence him to the Department of Corrections (DOC) for eight years. Chae also understood that if he was convicted after a trial he may be deported.
During the May 22, 1984, hearing, the district court added to the agreement the condition that Chae return to court on May 25, 1984, to surrender to immigration authorities. The court asked Chae if he understood that upon his failure to appear he would receive a penitentiary sentence, and *489that he would probably be deported after serving that sentence. Chae answered that he did. The court then sentenced Chae to DOC for a period of eight years, and suspended the sentence on the condition that Chae return to the court on May 25, 1984, and voluntarily submit to deportation proceedings.
Chae failed to appear on May 25, 1984, and the court issued a warrant for his arrest. A year later Chae was arrested and brought before the court. On July 27, 1985, Chae moved to vacate his guilty plea pursuant to Crim.P. Rule 35(c) on the ground that his consent to the plea agreement was obtained without minimally adequate reference by his counsel or the court to alternative aspects of federal law governing deportation, and that he received ineffective assistance of counsel. The court denied Chae’s motion on September 16, 1985, and on October 8, 1985, the court sentenced Chae to DOC for a term of eight years. The record does not reveal whether the district court vacated or amended the May 22, 1984, suspended sentence, but it appears from the mittimus that the court vacated the suspended sentence and imposed a new eight-year sentence.
II.
The majority concludes that the illegality in the sentence invalidated Chae’s consent to the plea bargain. Maj. op. at 487. I disagree. The illegality of the suspension of the sentence was not an integral part of the plea agreement. Chae pled guilty to second-degree sexual assault, and in return the People agreed to dismiss the second-degree kidnapping and first-degree sexual assault charges. Chae and the People also agreed that if Chae would submit to deportation he would not have to serve a prison sentence. Chae agreed to serve a prison term of no more than eight years if he failed to return to court on May 25, 1984, to submit himself to immigration authorities. The plea bargain allowed Chae to avoid a possible maximum sentence of forty-eight years. The court’s -lack of statutory authority to suspend the sentence on May 22, 1984, was not an integral part of the agreement and did not invalidate the plea. After Chae’s failure to return on May 25, 1984, the district court subjected him to no more than the eight-year sentence he bargained for. I do not believe Chae should be rewarded with a vacated plea for his failure to return on May 25, 1984, and submit to deportation.
An illegal sentence does not invalidate a knowing and voluntary plea unless the illegality affects one or more of the material conditions of the plea bargain. See People v. Wright, 194 Colo. 448, 450, 573 P.2d 551, 553 (1978) (trial court’s failure to impose recommended sentence draws into question voluntariness of defendant’s plea). In People v. Green, 114 Misc.2d 339, 343, 451 N.Y.S.2d 970, 973 (N.Y.Sup.Ct.1982), a New York County Supreme Court, relying on cases from a number of jurisdictions, held that “[wjhatever statutory, policy or constitutional considerations courts have enunciated to void a sentence of banishment, it is clear that the underlying conviction, whether by trial or plea of guilty, is unaffected.” The court concluded that the underlying conviction remained valid because “[t]he plea of guilty ... was voluntarily and knowingly entered with a full understanding of the conditions after consultation with counsel.” Id. The court noted that “[a]t no time before sentence did the defendant request to withdraw his plea. There is therefore no merit to the defendant’s contention that the underlying plea of guilty is void.” Id. (citations omitted).
In the present case the validity of Chae’s plea is unaffected by the court’s decision to illegally suspend the eight-year sentence rather than issue a proper sentence to probation subject to identical terms and conditions. See United States v. Green, 735 F.2d 1203, 1206 (9th Cir.1984) (“When a court exceeds its sentencing authority, the sentence is void only as to the excessive portion of it.”); Weigand v. Commonwealth, — Ky.-,-, 397 S.W.2d 780, 781 (1966), cert. denied, 384 U.S. 976, 86 S.Ct. 1870, 16 L.Ed.2d 686 (1966); State v. Wood, 53 Or.App. 198, 200, 631 P.2d 799, 800 (1981) (reference in sentence to unconstitutional statute is a nullity but sentence may be enforced). In In the Matter of the *490Application of Thomas E. Adams, 860 N.W.2d 513, 516 (S.D.1985), the South Dakota Supreme Court held that “[e]ven if the order of suspension is embodied in the judgment which imposes the sentence, nevertheless the sentence is authorized and valid, while the order of suspension is unauthorized and void, and as the latter is separable from the former, the latter fails, while the sentence stands.”
III.
The district court remedied the illegal sentence when it sentenced Chae on October 8, 1985. The imposition of an illegal sentence may be corrected at any time. Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 649, 91 L.Ed. 818 (1947); People v. Emig, 177 Colo. 174, 177, 493 P.2d 368, 369 (1972); People v. Favors, 42 Colo. App. 263, 600 P.2d 78 (1979). In Bozza v. United States, 330 U.S. at 165-66, 67 S.Ct. at 648-49, the trial court failed to impose the mandatory sentence required by statute but later corrected its mistake. The United States Supreme Court stated that “the court only set aside what it had no authority to do and substitute[d] directions required by law to be done upon the conviction of the offender.” Id., 330 U.S. at 167, 67 S.Ct. at 649. In the present case the district court set aside what it had no authority to do and gave Chae a legal sentence consistent with the terms of his plea agreement. We are not required to vacate Chae’s plea because the district court’s October 8, 1985, sentence remedied the only defect in the proceedings.
The majority notes that when a defendant enters into a plea agreement that includes as a material element a recommendation for an illegal sentence and the illegal sentence is in fact imposed on the defendant, the guilty plea is invalid and must be vacated because the basis on which the defendant entered the plea included the impermissible inducement of an illegal sentence. Maj. op. at 486. The majority then concludes that the recommended suspension of Chae’s sentence was a material part of the plea agreement which induced Chae to accept the agreement. Maj. op. at 487. I disagree with the majority’s application of the law to the facts of this case. Other jurisdictions have viewed the circumstances surrounding an illegal sentence to determine whether the illegality materially altered the benefits and detriments the parties bargained for in the plea agreement. Weigand v. Commonwealth, — Ky. at-, 397 S.W.2d at 781 (defendant’s decision to accept void probation and then violate it precludes defendant from challenging validity of probation order). In other jurisdictions, if the illegal sentence does not affect a material condition of the plea the trial court may correct the illegal sentence at any time. United States v. Green, 735 F.2d at 1206 (where, pursuant to plea bargain, trial court imposed probation condition requiring excessive restitution, proper remedy is reduction of restitution to amount authorized). In this case the recommended suspension of the sentence was not a material part of the plea agreement and the district court was authorized to correct the sentence. United States v. Minor, 846 F.2d 1184, 1188 (9th Cir.1988) (where an original sentence imposed after conviction was in excess of statutory limit, the district court could not impose wholly new sentences pursuant to Rule 35 motion, but was limited to correcting the original sentence by eliminating the excess that rendered it illegal); Bird v. State, 231 Md. 432, 436, 190 A.2d 804, 807 (1963) (trial court ordered to strike invalid condition of suspended sentence imposed after defendant’s conviction).
Courts considering the effect of illegal sentences on plea bargains have upheld the state’s right to accept a corrected sentence which is consistent with the defendant’s plea bargain. Florida courts have consistently held that when a defendant challenges his plea on the ground that he agreed to an illegal sentence, the court may, with the state’s agreement, adopt the original plea bargain with the illegality corrected. In Cleveland v. State, 394 So.2d 230 (Fla.Dist.Ct.App.1981), the defendant pled guilty to an illegal ten-year sentence for attempted armed burglary. The Florida District Court of Appeal held that “if the state should exercise its option to ac*491cept the plea with the sentence reduced to a legal term, then the other counts shall again be dismissed and the plea and the judgment shall stand as the predicate for a new sentence consistent with Florida law.” Id. See also Ruiz v. State, 537 So.2d 682, 683 (Fla.Dist.Ct.App.1989) (sentence in excess of statutory maximum); Daniels v. Smith, 478 So.2d 110, 111 (Fla.Dist.Ct.App. 1986) (minimum sentences illegally ordered to run concurrently); Chaney v. State, 462 So.2d 1148, 1160 (Fla.Dist.CtApp.1984) (sentence illegally imposed incarceration pursuant to split sentences totalling more than one year). In this case the People are willing to accept the legal sentence imposed by the court in response to Chae’s breach.
Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983), which the majority cites, is from this line of cases. In Forbert the defendant pled guilty to an illegal “split sentence.” Id. In ruling on Forbert’s motion to withdraw his plea, the Florida Supreme Court stated that:
Forbert had the right to have his sentence corrected so that it conformed to the law. When the judge indicated that he would resentence Forbert to eight years in prison, Forbert sought to withdraw his plea of guilty since such a sentence was not what he bargained for. The court should have then either allowed Forbert to withdraw his plea, reinstating the charges originally filed against him, or should have resentenced him within the parameters of the plea agreement.
Id. Forbert does not support vacating a defendant’s plea, or allowing a defendant to withdraw his plea, when the state agrees to accept a legal sentence consistent with the original plea bargain. The Forbert court recognized that
since the state may not have witnesses or other evidence available in cases where a defendant moves to withdraw his plea months or years after entering it, the state should have the option of either agreeing that the judgment and sentence should both be vacated or holding the defendant to his plea of guilty and vacating only the excessive portion of that sentence.
Id.
IV.
The majority cites People v. District Court, 673 P.2d 991 (Colo.1983), for the proposition that because Chae could not benefit from an illegal sentence he should not be allowed to bargain for one. Maj. op. at 487. In People v. District Court, 673 P.2d at 994, the trial court imposed a suspended sentence on the defendant. The court later became aware of circumstances which undermined the foundation of its suspended sentence, and revoked the suspension of the sentence. Id. The court refused to alter the sentence itself because it felt to do so would violate the double jeopardy clause. Id. We held that the suspension of the sentence on conditions authorized only for probation made the sentence illegal. Id., 673 P.2d at 996. To promote the public-policy interest of ensuring that convicted criminals receive adequate sentences we limited the reach of double jeopardy. We reasoned that to allow the defendant to serve a shorter sentence than he deserved merely because the court could not correct his sentence without twice putting him in jeopardy of life and limb granted to the defendant a right to benefit from his illegal sentence. Id., 673 P.2d at 997. “Granting defendants a right to benefit from illegal sentences,” we stated, “serves no sound public policy.” Id.
The policy concerns that supported our decision in People v. District Court are not present here. Although the sentence imposed by the district court contained an illegality, that illegality was immaterial. Therefore, Chae did not bargain for an illegal sentence. He bargained for a proper agreement which the district court imposed through illegal means. The majority allows Chae to benefit from his illegal sentence despite the fact that his plea was not induced by the illegality, and despite Chae’s failure to fulfill his part of the agreement.
*492Finally, the majority does not address the public-policy interest in allowing the People to enforce agreements they have fulfilled. Chae’s breach of the agreement should not deprive the People of the benefit of their bargain. The People agreed to forego a possible conviction and forty-eight year sentence in return for the assurance that Chae would either voluntarily leave the country or serve a sentence of eight years. Chae breached the agreement and the district court imposed a legal eight-year sentence. The seven years that have passed since the offense will make it difficult for the People to successfully prosecute Chae on the original charges. Under these circumstances the People should not be deprived of the benefit of an agreement which they fulfilled. See Forbert, 437 So.2d at 1081.
I respectfully dissent from Part III of the majority opinion.
ROVIRA and MULLARKEY, JJ., join in this concurrence and dissent.
. The majority asserts that the sentence recommendations differed from the actual sentence only to the extent that the former included the provision that Chae would in fact be deported. Maj. op. at 483 n. 3. This statement ignores the additional condition imposed by the court that Chae return to the court on May 25, 1984.
. At the Crim.P. 35(c) hearing, District Court Judge Kenneth Stuart made the following remarks:
I have been very concerned throughout this case and was at the time this guilty plea was entered in making sure the defendant understood what he was doing and what was going on. I set aside one plea because he had some reservations about whether he really understood what he had done the first time [he pled guilty]. I have no reservations about denying the defendant’s motion today. I find that he fully understood what he was doing, that there was no confusion in his mind, he was aware of not only the direct consequences of his guilty plea, but he was aware of the collateral consequences of deportation and in all probability further exclusion from readmission to this country.