concurring.
I agree with the decision to affirm Glaze’s conviction and to remand this case for resentencing, but I cannot adopt the majority’s reasoning about why Glaze should be resentenced. I would hold that Arkansas Code |inAnnotated section 16-90-201 has been repealed by implication. Accordingly, I concur in the decision of the court.
The question here involves an illegal sentence. A sentence is void or illegal when the trial court lacks the authority to impose it.5 Sentencing is statutory; therefore, a particular sentence must be in accordance with the applicable statute for the court to have authority to impose it.6 The issue of a void or illegal sentence is a matter of subject-matter jurisdiction that cannot be waived by the parties, may be raised for the first time on appeal, and can be addressed by this court sua sponte.'7
The majority outlines the law on repeal by implication, eliminating the need to recite it here. It correctly states that the Arkansas Criminal Code applies only to those crimes that occurred after January 1, 1976, but that does not end the analysis. In Neely v. State,8 the supreme court held that the firearm-enhancement statute codified at Arkansas Code Annotated 16-90-120 (Repl.2009) was not repealed by the adoption of the criminal code. Also, in Williams v. State,9 the supreme court explicitly rejected the argument that sentencing statutes outside of the criminal code were inapplicable after the enactment of the criminal code. The supreme court’s reasoning in Neely and Williams would presumably be applicable |1Tto any sentence-enhancement statute outside of the criminal code. The majority’s reasoning runs contrary to that precedent.
I would hold that section 16-90-201 was implicitly repealed by the passage of section 5-4-501. Both statutes set new sentencing ranges for defendants with multiple convictions. For example, the sentencing range- applicable here under section 16-90-201 is twenty to thirty years; under section 5^1-501, it is five to forty years. In contrast to the firearm-enhancement statute, which adds an additional penalty on top of whatever is provided for in the criminal code, both 5-4-501 and 16-90-201 establish the starting points for a jury’s sentencing consideration. Under section 5-4-501, a jury could conceivably sentence a habitual offender to less than the maximum for a first-time offender. That is not the case under section 16-90-201 where a defendant has been convicted at least four times. Because they mandate different minimum and maximum sentences, the two statutes cannot be read harmoniously and are in irreconcilable conflict.
Moreover, it is clear that the General Assembly took the matter of habitual-offender sentencing anew by passing section 5-4-501. One need only compare the language of both statutes. Section 16-90-201 provides:
Any person convicted of an offense which is punishable by imprisonment in the penitentiary who shall subsequently be convicted for another offense shall be punished as follows:
(1)If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his or her natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which |12the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern;
(2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his or her natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern;
(3)(A) If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his or her natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one-half (1 ½) times the maximum sentence provided by law for a first conviction.
(B) However, any person convicted of a fourth or subsequent offense shall be sentenced to imprisonment for no less than five (5) years.
In contrast, section 5-4-501 is a much more detailed habitual-offender statute:
(a)(1) A defendant meeting the following criteria may be sentenced to pay any fine authorized by law for the felony conviction and to an extended term of imprisonment as set forth in subdivision (a)(2) of this section:
(A) A defendant who: "
(1) Is convicted of a felony other than those enumerated in subsections (c) and (d) of this section committed after June 30,1993; and
(ii) Has previously been convicted of more than one (1) felony but fewer than four (4) felonies or who has been found guilty of more than one (1) but fewer than four (4) felonies;
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(2) The extended term of imprisonment for a defendant described in subdivision (a)(1) of this section is as follows: ... (C) For a conviction of a Class B felony, a term of imprisonment of not less than five (5) years nor more than thirty (30) years;
Jjs- • • •
(b)(1) A defendant meeting the following criteria may be sentenced to pay any fine authorized by law for the felony conviction and to an extended term of imprisonment as set forth in subdivision (b)(2) of this section:
(A) A defendant who:
(1) Is convicted of a felony other than a felony enumerated in subsections (c) and (d) of this section committed after June 30,1993; and
(ii) Has previously been convicted of four (4) or more felonies or who has been found guilty of four (4) or more felonies;
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(2) The extended term of imprisonment for a defendant described in subdivision (b)(1) of this section is as follows: ... (C) For a conviction of a Class B felony, a term of imprisonment of not less than five (5) years nor more than forty (40) years;
(c) [Provisions for defendants previously convicted of one or more “serious felonies involving violence”]
(d) [Provisions for defendants previously convicted of two or more “felonies involving violence”]
(e)(1) For the purpose of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary, § 5-39-201, and of the felony that was the object of the burglary are considered a single felony conviction or finding of guilt.
(2) A conviction or finding of guilt of an offense that was a felony under the law in effect prior to January 1, 1976, is considered a previous felony conviction or finding of guilt.
[ (f)-(h) Other provisions for serious felonies involving violence or felonies involving violence, as defined by subsections (c) and (d).]
Section 16-90-201 merely establishes new sentencing ranges for habitual offenders. In contrast, section 5-4-501 establishes new mínimums and máximums, outlines additional | upenalties for “felonies involving violence” and “serious felonies involving violence,” and delineates procedures for sentencing habitual offenders and rules for counting the number of previous offenses for the purpose of the statute. Clearly, the new statute was intended to replace the old statute completely.
I understand the reluctance to hold that an act of the legislature has been repealed by implication, but I can interpret the law in no other way here. The legislature repealed section 16-90-201 when it passed section 5^4-501. I cannot join the majority’s opinion, which holds to the contrary. Therefore, I respectfully concur in the judgment of the court.
. Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002).
. Cantrell v. State, 2009 Ark. 456, 343 S.W.3d 591.
. See Mayes, supra; Campea v. State, 87 Ark. App. 225, 189 S.W.3d 459 (2004).
. 2010 Ark. 452, 370 S.W.3d 820.
. 364 Ark. 203, 217 S.W.3d 817 (2005).