dissenting.
I agree with the majority that the trial court erred when it vacated defendant’s guilty pleas pursuant to ORS 135.365 over his objection. The remaining question is whether defendant is estopped from raising his claims on appeal because of his conduct in the trial court.
The state argues,
“After setting aside defendant’s guilty pleas, the trial court repeatedly gave defendant the opportunity to reinstate his pleas. Each time, defendant refused, presumably because he believed he could try his luck at trial with the *333security that double jeopardy would bar the state from enforcing the conviction. Having lost the gamble, defendant now seeks reinstatement of his pleas. The court offered defendant the complete relief he now seeks, and he chose not to accept the offered relief as a tactical matter. As such, this court should find that defendant waived his right to the remedy he seeks here.”
Generally, the right to appeal is a statutory privilege which can be relinquished either expressly or impliedly by conduct. Rea v. Rea, 195 Or 252, 278, 245 P2d 884 (1952). More specifically, a party may forfeit the right to appeal through acts on appeal that are inconsistent with that party’s position in the trial court. Kelly v. Tracy, 209 Or 153, 305 P2d 411 (1956). Although the state characterizes its argument as concerning “waiver,” it is more aptly understood as one of estoppel by election. An estoppel by election occurs when there is an “intentional exercise of a choice between inconsistent alternatives that bars the person making the choice from the benefits of the one not selected.” Black’s Law Dictionary 630 (9th ed 2009). Estoppel by election is a discretionary remedy that courts may invoke “ ‘to prevent the perversion of the judicial process.’ ” New Hampshire v. Maine, 532 US 742, 750, 121 S Ct 1808, 149 L Ed 2d 968 (2001) (quoting In re Cassidy, 892 F2d 637, 641 (7th Cir 1990)).
The doctrine is applicable to appeals in criminal cases. For example, in U.S. v. Velez Carrero, 140 F3d 327 (1st Cir 1998), the defendant maintained during his first appeal that his plea bargain should be specifically enforced; the court determined that the government had breached the plea agreement, granted the defendant the relief he sought, and remanded for resentencing. On remand, the defendant sought to set aside his plea on the ground that the plea itself had been tainted by the government’s breach of the plea bargain. The sentencing court denied the defendant’s motion, and the defendant appealed. On appeal, the reviewing court explained that
“[w]hen the prosecution fails to adhere to the terms of a plea agreement, the aggrieved defendant is entitled to either specific performance of the agreement or an opportunity to retract his plea. He is not entitled to both.”
*334Velez Carrero, 140 F3d at 329 (citations omitted). The court concluded, “It follows that, absent a showing of special circumstances, a criminal defendant ought properly to be precluded from pursuing a remedy which, in a previous iteration of the case, he eschewed in favor of a different (and inconsistent) remedy.” Id. at 330.
In this case, if, in fact, defendant had the opportunity to reinstate the plea agreement and the pleas made pursuant to it in the trial court and chose not to do so, he should not be heard to complain on appeal that the trial court erred at an earlier point in time by vacating his pleas. The chronology in this case is as follows: Defendant entered guilty pleas pursuant to the plea agreement on December 13,2005. A dispute arose regarding how the state would prove the enhancement factor that the plea agreement contemplated that the state would seek. On December 15,2005, a hearing was held, and initially, defendant was given the option by the trial court on how the state would seek to prove the enhancement factor — a trial to the court, a trial to jury, or by admission. Defendant refused to admit that he was on post-prison supervision, executed a waiver of the right to a jury trial on the issue, and elected to have the court determine whether the state could prove the enhancement factor that it had alleged. The court proceeded then with the sentencing hearing. In his opening statement, defense counsel raised for the first time the argument that the state had not filed a timely notice of its intention to seek enhancement. The trial court ruled that the state’s notice was “better notice” than the statute requires. The state then indicated that it believed that defendant’s position regarding the enhancement factor was contrary to the plea negotiation and suggested that the matter be set for trial. Subsequently, the trial court set aside defendant’s guilty pleas pursuant to the agreement over defendant’s objection pursuant to ORS 135.365, and entered not guilty pleas on his behalf. As acknowledged above, I agree with the majority that ORS 135.365 did not confer authority on the trial court to withdraw defendant’s guilty pleas, nor did any other statute authorize that action.
After the hearing, defendant filed a written motion in which he moved for specific performance of the plea agreement. In a memorandum accompanying the motion, defendant argued that the agreement was unambiguous and that *335at the sentencing hearing, the prosecutor had stated that the state would not follow the plea agreement unless defendant gave additional concessions. A hearing was held on the motion before a different judge on January 4, 2006. The trial court admonished defense counsel for playing a “game of gotcha.” The court stated to counsel, “[I]t seems clear to me that everybody in the room, except maybe your client, expected that you wouldn’t be making a timeliness objection or any other kind of objection to that departure allegation notice that had been filed.” The matter was then recessed until the afternoon.
During the afternoon portion of the hearing and after some discussion had occurred, defense counsel told the court,
“[W]e had an objection as far as a notice requirement at the time when we were trying to get this resolved before. The district attorney has given us a written notice after the indictment so we no longer have that objection at this time. That was the objection that stopped the sentencing. So we’ve received that noticef] and we have no objection according to the statute based on that.
“The district attorney has — he’s given us a statement indicating that [defendant], * * * was on post-prison supervision at the time that these offenses occurred. And with that, we’re prepared to stipulate I think that in fact he was.”
(Emphasis added.) The court then asked the state if it was willing to reinstate the plea petition and proceed with sentencing, and the deputy district attorney responded, in part, that “I would accept a reentry of guilty pleas today, to what I believe my understanding of the plea negotiations and Judge Rasmussen’s understanding of the plea negotiations were.”
The following colloquy ensued:
“[Defense Counsel]: All right. Let me just — [defendant] has just stated that he’s prepared to do according to the agreement that’s — that we’ve done is what he’s just told me. So that’s where we are as far as that’s concerned.
“[The Court]: Well, but what does that mean? Because we already determined that your understanding of the agreement was totally different than the [prosecutor’s] and Judge Rasmussen’s.
*336“[Defense Counsel]: Okay. Well, I’m not sure what we’re in dispute about as far as the agreement is concerned at this point.
“[The Court]: Well, as I understand it, the agreement allowed the state to argue for up to 50 months; is that right?
“[Defense Counsel]: Yes.
“[The Court]: And you get to argue for as little as 13 months. And that the defendant was pleading guilty to Robbery in the Third Degree, also to Unauthorized Use of a Vehicle, and Theft in the Second Degree times two; is that right? Were those the charges?
“[Defense Counsel]: I actually have — yes.
* * * *
“[The Court]: All right. And that, at this point, he would — the issue was over the Blakely issue basically, the enhancement factor. And he did subsequently waive his right to a jury trial on that. * * *
* * Hi *
“[The Court]: * * * But, [defense counsel], my question is now if your client wants to take that deal, is there anything — any legal impediment to [the prosecutor] requesting up to 50 months? Based on an enhancing factor.
“[Defense Counsel]: At this point, I don’t — I don’t see that there is.
“[The Court]: All right. Do you need some more time to talk to [defendant,] or are you ready to go?
“[Defense Counsel]: I think we’re ready to go to sentencing at this point.
* * * *
“[The Court]: Well, he’d have to do a change of plea first.”
Thereafter, a short recess was held so that defense counsel could review a new plea petition with defendant. When the hearing resumed, defense counsel told the court,
“And his position — our position is that the — well, that his pleas of guilty can only be withdrawn by him and not by the Court without his permission. And he’s never withdrawn *337his pleas of guilty so his pleas of guilty still stand. And he’s prepared to — as I understand it, to proceed on that basis and with that plea agreement.”
After a colloquy with the prosecutor, the court announced,
“[Defense Counsel], I think that we are now — as far as I can tell, where we are now is I think this Court needs to rule at this time on your motion to order specific performance. I didn’t withdraw the guilty plea but it’s done. And it seems to me that the question now is — and it looks like it was done basically on the Court’s own motion and asking the district attorney if that’s what they wanted done. It doesn’t sound like he asked you.”
Defense counsel confirmed that defendant had not withdrawn his pleas and that he had objected to the trial court vacating them.
After further discussion, the court asked defense counsel, “So your idea is that — what you really want the court to do is to reinstate the plea and sentence him.” Defense counsel confirmed that understanding. The court then inquired, “In accordance with the agreement. But what agreement? Since there isn’t one?” The court inquired whether defendant was asking to withdraw his waiver of his right to a jury on the enhancement factor. Defense counsel replied, “No, your honor. We’re not. We’re asking to continue with the — as the guilty pleas have already been done and continue as is.” At that point, the prosecutor announced the state’s intention to proceed to trial on the original charges. The court ultimately denied defendant’s motion for specific performance of the plea agreement, reasoning that it was bound by an earlier determination that there had been no meeting of the minds regarding the terms of the plea agreement and “[s]o I don’t think there’s anything really to enforce.”
After a further discussion off the record, defense counsel informed the court,
“Okay. Well, our position is still — [defendant’s position is unchanged. Basically his position is that he has not withdrawn his pleas of guilty, the pleas of guilty still stand, and that he’s not wanting to enter any new pleas of guilty because he’s already done that. And based on that, he was *338prepared to go to sentencing based on that. That’s basically where we are.
“And of course our position would be that the jeopardy prevents any trial, any further prosecution, based on the case that we’ve handed to the Court. So it doesn’t seem like there’s really anything to try on the case because he has guilty pleas entered. The only thing left is sentencing.”
The parties appeared for trial on January 5,2006. In the meantime, defendant had filed a motion to dismiss the charges based on former jeopardy. Counsel explained that the motion applied only to the charge of first-degree robbery. The trial court denied the motion and then inquired whether defendant “wants to plead guilty to the same deal that was offered before.” Defense counsel ultimately responded “Yes.” However, defendant told the court,
“I’m not going to plead to no deal. I’m not withdrawing— I’m not withdrawing my plea. I pled guilty to what he drew. He drew the draft up. I pled guilty to it.”
However, following a recess, defense counsel told the court, “Well, your honor, [defendant] says that he’s prepared, if we understand correctly, to accept the original deal as offered on the paperwork which is what I understood the Court to say.” The court inquired of the prosecutor and asked whether he would be agreeable. The prosecutor responded, ‘Well, he knows my understanding of the negotiations and he knows Judge Rassmussen’s understanding of the negotiations.” Ultimately, the prosecutor agreed that “[i]f he — I would do that.” The court proceeded to question defendant, who responded as follows:
“[Defendant]: Is it for me understanding these rights, I’m pleading guilty again? Is that what you’re asking me?
“[The Court]: Yes. That’s right, sir.
“[Defendant]: No, I’m not pleading guilty.
“[The Court]: Because at the present time[,] you don’t have a guilty plea on the record.
“[Defendant]: No. I’m not pleading again.”
Consequently, the case proceeded to trial on the original charges, and defendant was convicted of first-degree robbery.
*339On appeal, defendant makes four assignments of error:
“(1) The trial court erred by setting aside defendant’s guilty pleas over defendant’s objection[;] (2) The trial court erred by denying defendant’s Motion to Vacate order [sic] setting aside defendant’s guilty pleas and entering pleas of guilty[;] (3) The trial court erred by denying defendant’s motion for specific performance of the negotiated plea memorialized in the Plea Petition drafted and signed [by the prosecutor] and signed by defendant and his attorneyt;] and (4) The trial court erred by denying defendant’s motion to dismiss on double jeopardy grounds.”
Defendant concludes that
“For each and all of those reasons, this court should reverse the trial court’s denial of each and all of defendant’s motions and remand to the trial court to vacate the convictions and sentences based on the jury verdicts and proceed with sentencing on the guilty pleas.”
What the above record clearly shows is that the only impediment to defendant being sentenced in accordance with the written terms of the original plea agreement was his unwillingness to enter new pleas of guilty to charges for which he had agreed to plead guilty. Defendant ultimately abandoned his procedural objection to the enhancement factor after the trial court offered him the opportunity to plead guilty pursuant to the plea agreement that was contemplated by the state and the judge who had assisted in the negotiations that led to the original agreement. It was only because of the court’s insistence that he enter new pleas of guilty that defendant refused to avail himself of the benefits of the original agreement. Under the circumstances, this court should not reward defendant’s tactical decision to reject the opportunity to plead in accordance with the original plea bargain by reversing his conviction for robbery in the first degree and reinstating the plea agreement. Defendant has merely reaped what he sowed.
Apparently, the majority and I understand the record differently. It reasons,
“Defendant certainly was given opportunities to reenter his pleas, but not under the original plea agreement. *340Rather, he was given the option of accepting a plea agreement based on terms that were acceptable to the state and the trial court — that is, under an agreement whereby defendant waived his objections to departure sentences. * * *
“Whether defendant’s understanding of his original agreement was correct or not, he had the right to insist that he be sentenced according to the terms of the initial plea agreement and to retain his right to challenge on appeal the court’s rulings regarding that agreement. Ironically, it was defendant’s insistence on that right — not a waiver of it— that resulted in him being tried and ultimately sentenced beyond the terms contemplated in his original plea agreement.”
232 Or App at 330-32.
Respectfully, the majority’s reasoning is based on a flawed premise: that defendant had a right under the terms of the plea agreement to assert his procedural objection to the imposition of a departure sentence. However, the plea agreement was clear on its face that “the state is free to seek departure sentences that total no more than 50 months’ prison on the felony offenses” while the “defense is free to seek presumptive sentences and all concurrent sentences which would result in as little as 13 months [in] prison.” Indeed, in the course of the proceedings, defendant expressly withdrew his contention regarding the inability of the state to seek a departure sentence, and offered to stipulate that he was on post-prison supervision at the time that the alleged offenses occurred in order to proceed with sentencing. Thereafter, he was offered several opportunities to reinstate the plea agreement according to its express terms, terms that he had acknowledged through counsel. Instead, he opted to go to trial on the original charges. He should be bound by that election.1
I dissent.
It appears that defendant’s election was motivated by his desire to preserve for purposes of appeal his contention that the court could not vacate his pleas of guilty over his objection while still retaining the benefit of the plea agreement. His statements made through counsel evidence an abandonment of all other contentions, including his procedural objection, and the only impediment to specific performance of the plea agreement was his unwillingness to reenter new pleas to carry out the original terms of the agreement.