Ok, very brief hypo:

Defendants commit a State Jail Felony and State alleges a Deadly Weapon which elevates the State Jail to a 3rd Degree Felony. (easy)

Then State alleges that they were Engaging in Organized Criminal activity which makes the offense "one category higher than the most serious offense listed" in the engaging statute.

Question is - is the engaging a 3rd degree _or_ a 2nd degree felony?

I would say a 2nd degree. This gets into that wonderful area of distinguishing 12.35(a) and (c). JB wrote a whole book about that. Well, not all about that, but what to do with the variations of SJ felonies have tangled more than one plea packet into knots. And paper is hard to knot.

Anybody write an appeal on this issue yet?