¶38 (concurring in the result) — I concur in the result that the majority reaches. I write separately because I conclude that Joseph Peltier’s waiver of the statute of limitations does not implicate the superior court’s subject matter jurisdiction: the authority to adjudicate this type of controversy, three felony prosecutions.16 Rather, the superior court does not have the authority to enforce such a *751waiver. It is on this latter basis that affirming the superior court is correct.
SUBJECT MATTER JURISDICTION
¶39 The State correctly identifies the first question that we must decide: whether the statute of limitations restricts the superior court’s subject matter jurisdiction in criminal cases.17 The answer to this question is no.
¶40 The term “jurisdiction” is used to “describe the fundamental power of courts to act.”18 One type of jurisdiction, the type at issue in this case, is “subject matter jurisdiction.”19 “A court has subject matter jurisdiction where the court has the authority to adjudicate the type of controversy in the action . . . .”20
¶41 As the majority points out, our state constitution provides that “[t]he superior court shall have original jurisdiction ... in all criminal cases amounting to felony .. . .”21 This case is a prosecution for three felonies. Thus, there is no question that the superior court had subject matter jurisdiction over the “type of controversy” at issue in this case.
¶42 The superior court was not divested of subject matter jurisdiction when it decided whether it could enforce Peltier’s express waiver of the statute of limitations for the new charges in the second amended information. In re *752Personal Restraint of Stoudmire is instructive on this point.22
¶43 There, Jerrod Stoudmire argued that his second personal restraint petition entitled him to relief.23 He claimed his two indecent liberties convictions were “charged beyond the time allowed by the statute of limitation [s].”24
¶44 The supreme court first considered a procedural question: whether “the sentence was not valid on its face and the [superior] court was not one of competent jurisdiction.”25 In addressing these two questions, the court first stated:
A court does not lack subject matter jurisdiction solely because it may lack authority to enter a given order. A court has subject matter jurisdiction where the court has the authority to adjudicate the type of controversy in the action, and it does not lose subject matter jurisdiction merely by interpreting the law erroneously.[26]
¶45 The supreme court decided that the record before it established that the sentence was not valid on its face.27 Having decided this, the court declined to reach the second part of the procedural question: whether the trial court had subject matter jurisdiction.28 The court then proceeded to address the merits of the petition, concluding that the superior court exceeded its authority by permitting convic*753tions based on charges beyond the time allowed by the statute of limitations.29
¶46 Stoudmire was decided on the basis that the court did not have the authority to enforce a waiver of the statute of limitations.30 It was not decided on the basis of subject matter jurisdiction. The court expressly declined to reach the latter question.31
¶47 The parties both rely on Stoudmire, but for different purposes. Neither party cites it for the proposition that subject matter jurisdiction was the basis of that court’s decision.
¶48 The majority opinion in this case states that an “uninterrupted series of Court of Appeals decisions” hold that “the expiration of a criminal statutory limitation period deprived the superior court of subject matter jurisdiction over the charge.” Majority at 738.1 read the cases on which the majority relies differently.
¶49 For example, in State v. Walker, Division Three of this court stated, without further analysis, that “[t]he statute of limitations in a criminal case is jurisdictional.”32 In doing so, the court relied on State v. Eppens.33 But a close reading of that case reveals no reference to subject matter jurisdiction.34 Rather, the case merely states that “a statute of limitations is viewed differently in the criminal than in the civil context.”35
*754¶50 Likewise, the two other cases on which Walker relies do not discuss subject matter jurisdiction.36 In State v. Glover, Division Two stated, “[A] criminal statute of limitation is not merely a limitation upon the remedy, but is a ‘limitation upon the power of the sovereign to act against the accused.’ ”37 Moreover, in a footnote in that case, the court stated, “We are not, at this point, faced with the problem of a possible waiver of the limitation period, and therefore do not reach such issue in this opinion.”38 If the Glover court believed it was addressing subject matter jurisdiction, it is unlikely that it would have spoken of waiver in the footnote. That is because lack of subject matter jurisdiction is not something litigants have the power to waive.39 Either a court has subject matter jurisdiction or it does not.40
¶51 Also, in State v. Phelps, Division Two considered whether the trial court could order a seven-year extension of the statute of limitations in Donald Bradford Phelps’s sentence.41 The court explained that “the State has not been able to demonstrate any statutory authority allowing the sentencing court to extend the statute of limitations.”42 Because the court’s sentencing authority is limited to that expressly provided for by statute, the court concluded that “the extension of the statute of limitations for seven years [was] void and [could not] stand.”43 Nowhere in this opinion is there any reference to subject matter jurisdiction.
*755¶52 In sum, I conclude these cases decide whether a court has authority to make a decision, not whether a court has subject matter jurisdiction. For these reasons, I conclude that the superior court’s subject matter jurisdiction to decide matters in this criminal case was unaffected by the statute of limitations.
WAIVER OF STATUTE OF LIMITATIONS
¶53 The second question is whether a court has the authority to enforce an express waiver of the statute of limitations in a criminal case. I conclude that it does not.
¶54 Again, Stoudmire is instructive.44 There, Stoudmire argued that he was entitled to relief because two indecent liberties convictions were “charged beyond the time allowed by the statute of limitation [s].”45 The State argued that Stoudmire was not entitled to relief because “his guilty plea waive[d] any challenge” to these charges.46 The supreme court agreed with Stoudmire.
¶55 The court explained that a “ ‘plea bargaining agreement cannot exceed the statutory authority given to the courts.’ ”47 Thus, the sentencing court exceeded its authority when it enforced the plea agreement’s waiver provision and entered convictions for two charges that were barred by the statute of limitations.48
¶56 Notably, the supreme court did not use the term “jurisdiction” when it agreed with Stoudmire’s argument. Instead, the supreme court explained that the trial court “exceeded its authority.”49
*756¶57 Here, we are bound by Stoudmire’s holding. The trial court did not have the authority to enforce Peltier’s express waiver of the statute of limitations in his plea agreement. The 2003 agreement stated that Peltier waived “any objection to the filing of additional or greater charges based on . . . statutes of limitations.” Like the plea agreement in Stoudmire, this provision of the agreement exceeded the statutory authority of the courts to enforce.50
¶58 For this latter reason, I concur in the result that the majority reaches. Affirming the trial court on the basis that it lacked authority is the proper result.
Review granted at 179 Wn.2d 1014 (2014).
In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000).
Brief of Appellant at 8.
ZDI Gaming, Inc. v. Wash. State Gambling Comm’n, 173 Wn.2d 608, 616, 268 P.3d 929 (2012).
Outsource Servs. Mgmt., LLC v. Nooksack Bus. Corp., 172 Wn. App. 799, 809, 292 P.3d 147 (citing ZDI Gaming, Inc., 173 Wn.2d at 617-18), review granted, 177 Wn.2d 1019 (2013).
Stoudmire, 141 Wn.2d at 353 (some emphasis added).
Wash. Const, art. IV, § 6.
141 Wn.2d 342, 5 P.3d 1240 (2000).
Id. at 345.
Id. at 354.
Id. at 353 (emphasis added).
Id. (some emphasis added) (citations omitted).
Id. at 354.
Id.
Id. at 354-55.
Id. at 355.
Id. at 354.
153 Wn. App. 701, 705, 224 P.3d 814 (2009).
Id. (citing State v. Eppens, 30 Wn. App. 119, 124, 633 P.2d 92 (1981)).
Eppens, 30 Wn. App. at 124.
Id.
Walker, 153 Wn. App. at 705 n.2 (citing State v. Glover, 25 Wn. App. 58, 61-62, 604 P.2d 1015 (1979); State v. Phelps, 113 Wn. App. 347, 357, 57 P.3d 624 (2002)).
25 Wn. App. 58, 61, 604 P.2d 1015 (1979) (quoting State v. Fogel, 16 Ariz. App. 246, 248, 492 P.2d 742 (1972)).
Id. at 62 n.3.
Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 556, 958 P.2d 962 (1998).
Id.
113 Wn. App. 347, 350, 57 P.3d 624 (2002).
Id. at 357.
Id.
Stoudmire, 141 Wn.2d at 354-55.
Id. at 354.
Id.
Id. at 355 (internal quotation marks omitted) (quoting In re Pers. Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991)).
Id.
Id.
id.