concurring in part and dissenting in part: I agree with the majority drat McCarley’s cross-appeal should be denied. However, I do not agree a legal sentence was imposed by the trial court. I would sustain the State’s appeal, vacate the illegal sentence, and remand for resentencing of the defendant.
The majority’s discussion of appellate jurisdiction is confusing. The majority emphasizes the State failed to make a timely appeal from the sentence imposed by the trial court (“[T]he State has for whatever reason elected not to appeal, but seeks instead to mount a collateral attack upon a sentence.”). Next, however, the majority concludes we should retain jurisdiction of the appeal as a question reserved under K.S.A. 2006 Supp. 22-3602(b)(3). Thus the majority reluctantly recognizes the State’s right to challenge an illegal sentence at any time, provided a timely appeal is taken from the trial court’s denial of a motion to correct die sentence. I would prefer the more direct route the Supreme Court has noted:
*180“This court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. This court also has specific statutory jurisdiction to correct an illegal sentence at any time. A sentence entered where a court lacks jurisdiction is an illegal sentence which we may correct on appeal.” State v. Vanwey, 262 Kan. 524, Syl. ¶ 1, 941 P.2d 365 (1997).
The Vanwey holding is based on K.S.A. 60-2101(b) and K.S.A. 22-3504. The Supreme Court’s holding makes unnecessary any discussion regarding a question reserved under K.S.A. 2006 Supp. 22-3602(b)(3).
McCarley’s Sentence Was Illegal
An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served. State v. Nash, 281 Kan. 600, 133 P.3d 836 (2006).
The majority reasons, notwithstanding McCarley’s conviction of reckless aggravated battery — a severity level 5 person felony, that the district court had jurisdiction to sentence for a nonexistent severity level 8 person felony. The majority states “[i]t is clear that the district court had jurisdiction to convict and sentence McCarley for severity level 8 aggravated reckless battery,” as a lesser degree of the crime charged. I do not agree. McCarley was convicted of a severity level 5 person felony and the sentence imposed did not conform to the statutory provision for the conviction of record. I submit the “Jurisdiction” section of the majority opinion fails to recognize the district court did not have the judicial power to impose a sentence not authorized by or in conformity with the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.
I believe the correct question to be asked is whether the sentence imposed conformed to the sentence required for the conviction of record. If it did not, tire sentence is illegal and under K.S.A. 22-3504 and K.S.A. 60-2101(b) maybe corrected at anytime. Vanwey, 262 Kan. 524, Syl. ¶ 1.1 conclude that as a matter of law the sentence imposed was nonconforming and therefore illegal. The *181majority relies on authorities that recognize, for one reason or another, that the sentences imposed were conforming to the crimes of conviction; thus, those cases are all distinguishable from the present circumstance in which the trial court imposed a sentence not authorized by law for the conviction of record.
Invited Error Is Not Applicable
The majority concedes the invited error doctrine is not applicable if the district court did not have jurisdiction to impose the sentence that was imposed, appropriately citing to Kunellis, 276 Kan. 461.
Both parties address the unpublished case of State v. Davis, Case No. 90,381, opinion filed April 16, 2004, rev. denied 278 Kan. 848 (2004). In Davis, the defendant was convicted of severity level 5 attempted aggravated robbery with a stipulated category A criminal history. However, the PSI listed the offense as severity level 7 and listed an appropriate sentence range for grid box “7-A.” Neither the district judge nor the parties noticed the error. The district court sentenced Davis to 32 months, a presumptive sentence in grid box “7-A.” Sometime after the sentencing hearing, an amended PSI was prepared listing attempted aggravated robbery as a severity level 5 crime with a sentencing range of 122-136 months. The district court held a second sentencing hearing and sentenced Davis to 122 months’ incarceration. Citing State v. Reedy, 25 Kan. App. 2d 536, 967 P.2d 342, rev. denied 266 Kan. 1114 (1998), the Davis court held that when a sentence does not conform to the statutorily authorized punishment, the sentence is illegal and the district court has jurisdiction to correct the sentence. The Davis court concluded that Davis’ original sentence was illegal because it did not conform to the applicable statutory provisions.
I find Davis to be persuasive. In the present appeal, the sentence imposed did not conform to the requirements of law and was therefore illegal. The trial court did not have jurisdiction to impose the sentence that was imposed and in doing so acted outside its authority under the KSGA. Accordingly, the doctrine of invited error does not preclude the State from moving to correct the illegal sentence.
*182 There Was No Agreement Between The Parties
According to the majority, “there was a clear agreement between the State and the defendant which resulted in a sentence for the severity level 8 crime.” Consequently, the majority holds the agreement precludes appellate review of the sentence imposes. I do not agree. The record on appeal does not suggest any such agreement, and neither party on appeal suggest there was an agreement. To the contrary, it is apparent both parties were asleep at the wheel when McCarley was sentenced and neither counsel caught the severity level error in the PSI. At sentencing, there was this narrative:
“THE COURT: The Presentence Investigation shows this to be a severity level 8 offense, shows Steven to have a criminal history of A. Any dispute by the State as to severity level or criminal historycriminal historywith severity level?
“MR. SMITH (prosecutor): No, your Honor.”
Similar questions were asked of defendant’s attorney.
The colloquy demonstrates both parties misspoke as to the severity level of the offense. There is no evidence in the record to support the majority’s conclusion of an agreement between the parties to circumvent the verdict of the jury.
Summary
I conclude (1) an illegal sentence was imposed; (2) an illegal sentence may be corrected at any time; (3) the doctrine of invited error is not applicable because the sentence imposed was illegal; and (4) there is no evidence to support an agreement between the parties to circumvent the verdict of the jury or the requirements of law. Accordingly, I would sustain the State’s appeal and remand for resentencing in conformity with the KSGA.