dissenting.
In October 2002, the trial court modified Heredia’s sentence to conform to the views expressed in People v. Luther, 43 P.3d 660 (Colo.App.2001) {Luther I). In December 2003, the court corrected Heredia’s sentence to conform to People v. Luther, 58 P.3d 1013 (Colo.2002) {Luther II).
Heredia now contends that the trial court lacked authority to issue the December 2003 order. Our resolution of his contention depends on how we answer two subsidiary questions:
1. When the trial court modified Here-dia’s sentence in October 2002, did the order result in an illegal sentence?
*10472. If so, did the trial court have authority to correct the illegal sentence in December 2003, even though the prosecution failed to appeal the October 2002 order?
Because the majority believes that the answer to the first question is no, it does not reach the second question. It simply concludes that the trial court lacked authority to correct a sentence that was never illegal.
I disagree with the majority’s view. Because I conclude that the answer to the first question is yes, I would address the second question and further conclude that the trial court had authority to correct the illegal sentence.
I write separately to explain my view.
I. The October 2002 Order Resulted in an Illegal Sentence
It is undisputed that, in October 2002, the trial court modified Heredia’s sentence to achieve the result contemplated in Luther I. Therefore, to gauge the legality of the trial court’s order, we must understand what occurs under the analysis of Luther I, and how this differs from the outcome under Luther II.
A. Luther I and Luther II Concern the Original Parole Period
The Luther cases concern the relationship between two sentences:
1. Original Sentence. Luther was convicted of manslaughter and was sentenced to a prison term, plus three years of mandatory parole. He served his prison term and was released to parole. He then absconded, which resulted in the revocation of his parole. Following revocation, Luther was returned to prison to serve the remainder of his mandatory parole period.
2. Attempted Escape. In addition to having his parole revoked, Luther was charged with escape. He pled guilty to attempted escape and was sentenced to three years in prison, plus three years of mandatory parole, to be served consecutively to his original sentence.
The debate in Luther I and Luther II centered on the original parole period — specifically, the portion that remained to be served after revocation of parole and reincar-ceration. The issue was whether this un-served period was “parole” within the meaning of the former § 18-l-105(l)(a)(V)(E) (now codified as § 18~1.3^f01(l)(a)(V)(E), C.R.S.2004). The courts reached different conclusions on this issue of statutory interpretation:
• In Luther I, a division of this court held that this period was “parole” within the meaning of § 18-l-105(l)(a)(V)(E). Because it was parole, ruled the division, Luther could not be required to serve this period in prison before starting his consecutive sentence for attempted escape; rather, Luther was to serve this period concurrently with the parole period that attached to the sentence for attempted escape. Consequently, Luther began serving his sentence for attempted escape on the day that he was sentenced for that crime. Luther I, supra, 43 P.3d at 662-63.
• In Luther II, the supreme court held that this period was not “parole” within the meaning of § 18 — 1—105(l)(a)(V)(E). Because it was not parole, held the court, Luther would be required to serve the remaining period in prison, plus his consecutive sentence for attempted escape, before being released to mandatory parole. See Luther II, supra, 58 P.3d at 1016-17.
Although the supreme court found various flaws in Luther I's analysis, two points are critical for our purposes: (1) under Luther I, the court that imposes sentence for the crime of attempted escape also dictates how the defendant will serve the period of parole that attached to the original sentence; and (2) the sentencing court does not have the authority to do this. See Luther II, supra, 58 P.3d at 1016 (“[Ojnee the parole board released Luther to his mandatory parole period, the trial court lacked authority to impact the terms of that parole, or the penalties for violation of that parole.”).
*1048B.The October 2002 Order Exceeded the Trial Court’s Authority
The trial court’s October 2002 order states that Heredia’s sentence for attempted escape would be served as follows: “Sentence is Consecutive, Mandatory Parole Period of 3 Years i[s] Concurrent.” The trial court issued this order so that Heredia’s sentence would conform to the views set forth in Luther I. Ironically, by following the dictates of Luther I, the trial court exceeded its authority in two ways.
First, the court invaded the exclusive province of the parole board and affected sentences imposed by other district courts. Just as in Luther I, the October 2002 order effectively negated the period of reincarceration that Heredia would have served for violating mandatory parole, which was part of earlier sentences imposed by other district courts. As noted in Luther II, however, once the parole board released Heredia to his original mandatory parole, “the trial court lacked authority to impact the terms of that parole, or the penalties for violation of that parole.” Luther II, supra, 58 P.3d at 1016. The trial court had no authority to invade the exclusive province of the parole board, nor did it have authority to affect sentences imposed by other district courts. See Meredith v. Lavaras, 954 P.2d 597, 602 (Colo.1998) (“a district court lacks authority to address the circumstances around a plea bargain, judgment of conviction, or court sentence entered in another district court”); Bullard v. Dep’t of Corr., 949 P.2d 999, 1003 (Colo.1997) (“[t]he Montrose court had no authority to construe or terminate the El Paso sentence”).
Second, the court exceeded its statutory authority. As a result of the October 2002 order, Heredia was to serve his sentence for attempted escape concurrently with the rein-carceration period that followed revocation of his original period of mandatory parole. See People v. Perea, 74 P.3d 326, 334 (Colo.App.2002) (in effect, Luther I required that the sentence for attempted escape “be served concurrently with the first sentence until the period of mandatory parole associated with that first sentence was extinguished”). This result conflicts with the governing statute, which required imposition of a consecutive sentence. See § 18-8-208.1(1), C.R.S.2004 (“If a person, while in custody or confinement following conviction of a felony, knowingly attempts to escape from said custody or confinement, he commits a class four felony. The sentence imposed pursuant to this subsection (1) shall run consecutively with any sentences be served by the offender.”).
C.The October 2002 Order was “Illegal” under Crim. P. 35(a)
The majority holds that the October 2002 order affected the “manner in which Heredia was ordered to serve his sentences, rather than the legality of the sentences themselves.” In my view, this conclusion evidences a misunderstanding about the nature of illegal sentences. The question is not whether a sentencing order merely affects the manner in which sentences are served; it is whether the sentencing court has acted outside of its jurisdiction. If a court has no authority to direct the manner in which a sentence is served, its attempt to do so is “illegal.” See In re Mills, 135 U.S. 263, 270, 10 S.Ct. 762, 764, 34 L.Ed. 107 (1890) (“[T]he orders directing the sentences of imprisonment to be executed in a penitentiary are void. This is not a case of mere error, but one in which the court below transcended its powers.”).
Because the trial court lacked authority to (1) invade the province of the parole board, (2) affect sentences imposed by other district courts, and (3) impose a concurrent sentence in violation of statute, the October 2002 order was “illegal” within the meaning of the then effective version of Crim. P. 35(a). See People v. Torkelson, 971 P.2d 660, 661 (Colo.App.1998) (sentence was illegal because it was imposed by a county judge lacking lawful authority); People v. Anaya, 894 P.2d 28, 31 (Colo.App.1994) (“A sentence that is beyond the statutory authority of the court is illegal”). And because the October 2002 order was illegal in these ways, the entire sentence was illegal. See Delgado v. People, 105 P.3d 634, 636-37 (Colo.2005).
D.The Sentence was Illegal When Issued
Heredia argues that, because the October 2002 order was issued before the supreme court decided Luther II, his sentence was *1049legal when it was imposed. I disagree. Luther II did not change the law, it merely clarified what the pertinent statute has always meant. See People v. Grenemyer, 827 P.2d 603, 607 (Colo.App.1992) (if foreseeable, a judicial interpretation of a statute can be retroactively applied to a criminal defendant). Although the trial court issued the October 2002 order in reliance on Luther I, Heredia had no vested right in this erroneous interpretation of the law. See Aue v. Diesslin, 798 P.2d 436, 441 (Colo.1990).
Heredia also argues that the prosecution failed to prove the factual predicate necessary to sustain its request for correction of the October 2002 order. I again disagree. This was a question of law, and the trial court could properly conclude that its sentencing order was illegal simply by reviewing the October 2002 order in light of Luther II.
II. The Trial Court had Jurisdiction to Correct its Illegal Sentence
Having concluded that the October 2002 order resulted in an illegal sentence, I now consider whether the trial court had jurisdiction to correct the sentence in December 2003. I further conclude that the answer is yes.
Heredia argues that the trial court lacked jurisdiction because the prosecution is not a “person convicted of a crime,” within the meaning of § 18-1-410, C.R.S.2004. Although I agree with Heredia’s reading of the statute, I disagree with his conclusion. In my view, a trial court does not need statutory authority to acquire jurisdiction over an illegal sentence. Rather, a trial court retains jurisdiction to correct an illegal sentence at any time because an illegal sentence represents a kind of jurisdictional defect. See Casias v. People, 148 Colo. 544, 546-47, 367 P.2d 327, 328 (1961) (“[A] trial court which enters an erroneous judgment and sentence in a criminal proceeding retains jurisdiction to correct such erroneous sentence.”); see also United States v. Henry, 709 F.2d 298, 307-08 (5th Cir.1983) (en banc) (the court’s power to correct an illegal sentence at any time springs from the court’s want of jurisdiction to impose the illegal sentence in the first place).
Also, contrary to Heredia’s argument, in my view, a trial court may act upon a Crim. P. 35(a) motion that is filed by the prosecution. Other courts have reached this conclusion under the pre-1987 federal rule, on which our rule is based. See United States v. Corbitt, 13 F.3d 207, 211-12 (7th Cir.1993) (the government could invoke the pre-1987 version of Fed.R.Crim.P. 35 to correct an illegal sentence); State v. Wika, 574 N.W.2d 831, 832-33 (N.D.1998) (the prosecution may bring a motion to correct an illegal sentence under state Rule 35(a) that is modeled on pre-1987 federal rule). Indeed, a court may correct an illegal sentence sua sponte. See Guerin v. Fullerton, 154 Colo. 142, 144, 389 P.2d 84, 85 (1964) (under Crim. P. 35, the court may correct an illegal sentence on its own motion so long as the parties have notice and an opportunity to be heard).
I agree with Heredia that the trial court’s October 2002 order could have been appealed, and I agree that, because it did not appeal, the prosecution must overcome the law of the case doctrine. See United States v. Mazak, 789 F.2d 580 (7th Cir.1986) (although Fed.R.Crim.P. 35(a) allows correction of an illegal sentence at any time, the law of the case doctrine applies); Paul v. United States, 734 F.2d 1064 (5th Cir.1984) (same); Scott v. State, 150 Md.App. 468, 822 A.2d 472 (2003) (same), aff'd, 379 Md. 170, 840 A.2d 715 (2004).
But this obstacle is not insurmountable. The law of the ease doctrine is flexible, and a court may, where appropriate, overlook the doctrine and its own prior ruling to grant relief under Crim. P. 35(a). See United States v. Mazak, supra, 789 F.2d at 581 (law of the case doctrine will not be enforced where doing so would produce an injustice); see also United States v. Quon, 241 F.2d 161 (2d Cir.1957); Ekberg v. United States, 167 F.2d 380, 384 (1st Cir.1948) (because the sentencing court may correct an illegal sentence at any time, the trial court had the power to grant the defendant’s second motion, notwithstanding its denial of the earlier motion).
I acknowledge that a criminal defendant may overcome the law of the case doctrine more easily than the prosecution. But if the prosecution’s Crim. P. 35(a) motion is meritorious, as this one was, a court may revisit its *1050previous ruling and correct an illegal sentence in the prosecution’s favor, even though this may result in a longer sentence for the defendant.
I make this observation with two points in mind.
First, if correction of an illegal sentence affects the voluntariness of a defendant’s plea agreement, the plea itself may have to be invalidated under Crim. P. 35(c). But a court cannot be precluded from correcting an illegal sentence merely because the sentence formed part of the plea bargain. See Craig v. People, 986 P.2d 951, 959 (Colo.1999) (when parties agree to a sentence that is contrary to law, the resulting illegality is not subject to specific enforcement); cf. Chae v. People, 780 P.2d 481 (Colo.1989) (defendant could withdraw guilty plea under a plea agreement that included as material element a recommendation for an illegal sentence).
Second, if an illegal sentence is corrected after the defendant has been released, he or she may receive credit for the number of days that he has “served” his sentence out of custody. See People v. Stark, 902 P.2d 928 (Colo.App.1995) (citing White v. Pearlman, 42 F.2d 788 (10th Cir.1930)).
I conclude that the trial court had authority to correct the October 2002 order under Crim. P. 35(a). For this reason, I respectfully dissent.