This week, after having the case pending in the CCA for THREE years, Ex parte Shoe was dismissed as improvidently granted. What the heck?

We have been waiting to hear whether a defendant can be collaterally estopped from complaining about an illegal sentence by accepting it without complaint at trial. Mr. Shoe didn't get a fine in his DWI case (as was required by law at the time). So, naturally, when he was facing a revocation hearing for subsequent DWI, he "discovered" the illegal sentence. Here is what the court of appeals had to say:

While the sentence assessed by the trial court in this case is illegal, appellant requested the sentence and accepted the benefit of the lesser sentence when he entered into the plea bargain agreement with the State. He benefitted from not having the fine assessed against him. Appellant should not now be permitted to challenge the lesser sentence--the benefit he received and for which he bargained-- because events since the sentence was assessed now make that sentence less appealing to him. See Williams, 65 S.W.3d at 660 (Keller, P.J., concurring) ("By accepting the plea agreement, appellant gained a bargained-for benefit that should now estop him from challenging the trial court's authority."). Accordingly, we agree with the reasoning of the courts from our sister states and hold that appellant is estopped from challenging the illegal sentence because he accepted the benefits of it. We overrule appellant's points on appeal and arguments on remand.

SO, WHY DID IT TAKE 3 YEARS TO DISCOVER THE CASE DIDN'T NEED DISCRETIONARY REVIEW?

that is certainly a long time to wait for a shoe to . . . i can't. i can't do it. i just can't make myself say it.

drop ( you're welcome)

Well, in a different case with a slightly different set of punishment facts, the CCA answered the question. Judge Keller wrote that the defendant can't accept the benefit of a more lenient punishment than permitted by the law and then challenge it. For details, click here.