The question in this case is whether the defendant, having pled guilty to a charge *605 of third-degree theft in violation of Iowa Code section 714.2(3) (1991), should have been sentenced under this subsection when prior to sentencing an amendment to section 714.2 reclassified the degrees of theft. We find that, the defendant should have been sentenced pursuant to the newly amended statute, and reverse and .remand for resentencing.
The defendant, Antoinette Austin, was charged with theft for taking $167.88 worth of children’s clothes from the Wal-Mart store in Marshalltown on May 22, 1992. On July 31, Austin pled guilty to third-degree theft pursuant to a plea agreement whereby the State would drop an assault charge and not make a recommendation regarding sentencing. Acting pursuant to Iowa Code sections 714.2(3) and 903.1(2) (1991), the district court sentenced Austin to a term of imprisonment not to exceed two years. Austin appeals the sentence.
Effective July 1, 1992, the legislature amended section 714.2, which defines the various degrees of theft. 1992 Iowa Acts ch. 1060, § 1. Apparently, the parties and the court were unaware of the amendment or believed it did not affect these proceedings. Former section 714.2(3) provided that a person was guilty of third-degree theft, an aggravated misdemeanor, when that person had taken property exceeding $100 but not exceeding $500 in value. As amended, subsection (3) now provides that the minimum amount of the property is $500. Stolen property valued at $100 but not more than $500 now falls under the terms of section 714.2(4) classifying fourth-degree theft, a serious misdemeanor. The maximum penalty for an aggravated misdemeanor is a sentence of two years in prison and a five thousand dollar fine; the maximum penalty for a serious misdemeanor is one year in prison and a one thousand dollar fine. Iowa Code § 903.1 (1991).
Defendant contends that she was sentenced after the statute was amended; therefore, the district court erred in not sentencing her under the amended statute. The State contends that, because the legislature failed to provide for retroactive application of the amendment, it operates prospectively. The State also contends defendant failed to preserve error.
I. Reduced sentence. In her claim of entitlement to a reduced sentence, defendant relies upon Iowa Code section 4.13(4) (1991). This section provides that if a “penalty, forfeiture, or punishment for any offense is reduced by a re-enactment, revision, or amendment of a statute, the penalty, forfeiture, or punishment if not already imposed shall be imposed according to the statute as amended.” Defendant urges the amendment reduced the penalty for thefts involving property with a value between one and five hundred dollars.
The State argues that the amended statute did not affect the penalty of third-degree theft but merely changed an element of the offense. In support of its argument, the State cites
State v. Jenson,
We first address the State’s reliance on
Jenson.
In
Jenson,
the defendant pled no contest to a charge of drunk driving, third offense.
Id.,
We believe
Jenson
is distinguishable from the present case. Nebraska’s rule, mitigating punishment when an amendment reduces the penalty of a criminal offense, is a court made rule rather than a statutory mandate.
See State v. Randolph,
We believe the relevant inquiry is whether the determination of the value of the property, in order to classify the degree of theft, is an element of the offense or an element used for imposing a penalty and thus falls within the “penalty” and “punishment” language of section 4.13(4). An examination of our statutory framework concerning theft shows that Iowa Code section 714.1 (1991) defines theft and specifies the acts constituting the offense.
1
This section was not amended in 1992. Iowa Code section 714.2
2
classifies the degrees of the offense of theft by specifying the value of the stolen property but does not define the crime. In a different context, we have observed that “specifying the degrees of theft does not change theft into a different offense; it merely provides a system of categorizing degrees of theft in order to classify the crime for sentencing.”
State v. Garr,
Stated otherwise, section 714.2 does not define the crime of larceny; it merely provides criteria for determining punishment, one criteria being the value of the property. While the State must meet its burden to establish the dollar value of the stolen property in order to designate the crime for sentencing, the proof of the property’s value is relevant only to the punishment. We conclude the provision of section 4.13(4) concerning a mitigated penalty is applicable in this case.
Another jurisdiction has addressed a similar issue. Ohio has a statute identical to our section 4.13(4). In
State v. Coffman,
II. Error preservation. The State argues that defendant pled guilty to the third-degree theft charge after being informed of the maximum sentence of two-years imprisonment and failed to raise the issue of sentencing under the amendment until her appeal.
We conclude that the rule of error preservation is not available to the State under these circumstances. On July 31 at the plea proceeding, the court advised defendant that third-degree theft involved “property exceeding one hundred but not exceeding five hundred dollars in value” and defined value. In determining the factual basis for the plea, defendant responded af *607 firmatively to the court’s question of whether the value of the property taken was between one hundred and five hundred dollars. Defendant was informed third-degree theft carried a maximum sentence of two years and she pled guilty to that charge; however, she was obviously unaware that the value of the stolen property fit fourth-degree theft rather than third-degree theft under the amended statute. At sentencing, the court outlined the underlying facts and referred to the minutes of evidence and the pre-sentence report which each showed the value of the property to be $167.88. No reference was made .to the 1992 amendment. At every stage of the proceedings, defendant was led to believe that the theft of property valued at $167.88 required sentencing under third-degree theft as an aggravated misdemeanor. We hasten to add that we are not critical of the court or attorneys involved for not discovering a legislative amendment effective only a few weeks before the plea and sentencing and possibly not published at that time.
Our case law has provided that criminal sentences not authorized by statute are void and cannot be permitted to stand.
State v. Draper,
We have also adopted the rule that the concept of error preservation is not available to the appellee when the appeal is from an illegal or void sentence.
Ohnmacht,
III. Summary. In summary, we hold that the district court erred in failing to sentence the defendant pursuant to the newly amended Iowa Code section 714.2(4). Defendant’s sentence is vacated and the case is remanded for resentencing.
SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
Notes
. Appropriate to the present charge section 714.-1(1) provides a theft is committed when a person "[t]akes possession or control of the property of another ..., with the intent to deprive the other thereof.”
. The 1991 Code version provides in subsection 3:
The theft of property exceeding one hundred dollars but not exceeding five hundred dollars in value ..., is theft in the third degree. Theft in the third degree is an aggravated misdemeanor.
The 1992 amendment changes the amounts in subsection 3 to "five hundred dollars, but not exceeding one thousand dollars ..." and changes subsection 4 to include amounts between one hundred and five hundred dollars and constitute theft in the fourth degree, a serious misdemeanor. 1992 Iowa Acts ch. 1060, § I-