concurring in part, dissenting in part.
While I agree that appellant’s conviction for the crime of rape should be affirmed, I must respectfully, but strongly, dissent from the position taken on the sentencing issue by the majority of this court which today gives cause to the popular notion that our criminal justice system is weighted in favor of the criminal.
The appellant was convicted of rape, a class Y felony, and sentenced to a term of twelve years with eight years suspended. Appellant argued on appeal that the evidence was insufficient to support his conviction. I fully agree with the majority that appellant’s contention has no merit and that his conviction should be affirmed.
My departure from the majority arises from its refusal to correct the illegal sentence given the appellant. Rape is a class Y felony for which the legislature has set a range of imprisonment at not less than ten years, and not more than forty years, or life. Ark. Code Ann. § 5-4-401 (a)(1) (1993). Arkansas Code Annotated § 5-4-301(a)(1)(C) (1993) expressly provides that the court shall not suspend imposition of sentence as to a term of imprisonment for a class Y felony. See Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985); see also State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). Yet this is precisely what the trial court did when it suspended eight years of the appellant’s twelve-year sentence.
The supreme court recently held in Eberlein v. State, 315 Ark. 591, 869 S.W.2d 12 (1994), that pursuant to a statute applicable to that case the trial court lacked authority to suspend imposition of a ten-year sentence. The defendant had been convicted of two prior felonies and his present conviction was for a drug related offense. The supreme court reversed and remanded for resen-tencing stating:
There appears no dispute that the trial court exceeded its authority, and we concur that the trial court erred. This court has repeatedly held that sentencing is entirely a matter of statute. State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). If the General Assembly sets a constitutional sentencing guide for an offense, the trial court has no authority to suspend it. Id.
If the original sentence is illegal, even though partially executed, the sentencing court may correct it at any time. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). Resentencing upon remand is not prohibited by former jeopardy considerations. State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).
(Emphasis added.) 315 Ark. at 594, 869 S.W.2d at 14.
The majority acknowledges that the suspension of eight years of appellant’s sentence was error, but holds that it may not consider this error because the state did not appeal the issue. However, we have held that:
[WJhen a court has imposed an illegal sentence on a defendant, then we will review it regardless of whether an objection was raised below. An illegal sentence is one which is illegal “on its face.” Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). Therefore, we could raise the issue on our own.
(Emphasis added.) Jones v. State, 27 Ark. App. 24, 27, 765 S.W.2d 15, 17 (1989).
The trial court’s judgment of conviction recites on its face that appellant is found guilty of Y felony rape and imposes a twelve-year sentence with eight years suspended. This sentence is illegal on its face. The supreme court has discussed illegal or void sentences in terms of subject matter jurisdiction which may be reviewed on appeal whether or not an objection was made in the trial court. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). In Jones v. State, supra, we expressed the view that illegal sentences, i.e., a sentence by a court acting in excess of its authority in sentencing, was actually not a matter of subject matter jurisdiction, however, it was an issue which we would review even if we had to raise it on our own. These respective viewpoints are not actually inconsistent because a lack of subject matter jurisdiction equates to a lack of authority or power in a court to act. See, e.g., Ware v. Gardner, 309 Ark. 148, 827 S.W.2d 657 (1992). Although a circuit court does have subject matter jurisdiction in the area of imposing sentences on convicted felons, it lacks the power or authority to impose a sentence outside the range provided by statute, or to suspend a sentence when the legislature has expressly prohibited suspension by statute.
The majority holds that we can correct an illegal sentence if the sentencing mistake runs in favor of the state and against the convicted felon even if the convicted felon does not appeal the issue; but if the illegal sentencing mistake runs in favor of the convicted felon and against the state then we may not act to correct it unless the state appeals the issue. More specifically, it is the majority’s position that if this convicted rapist had been illegally sentenced to 41 years, one year in excess of the permissible range, we would be obliged to correct the sentencing error, sua sponte, even though the appellant did not raise the issue. However, we may not correct an illegal sentence of 12 years with 8 years suspended, sua sponte, in the absence of the state appealing the error even though we have the case before us on appeal by the appellant. We have said that we could raise the issue on our own, Jones v. State, supra, and to hold that we can do so only when it will serve to benefit, not an accused, but a convicted rapist or other convicted felon, is illogical and offensive to most any non-felon’s basic sense of fairness and justice.
Finally, the majority poses the question that, if an illegal sentence may be truly corrected “at any time,” is it possible that long after a defendant has served his sentence and been released from prison, he could be brought back into court and resentenced to an additional term? The short answer is that this is not the situation before us. This case is before us on appeal from a judgment entered December 29, 1992; not long after appellant has served out an illegal sentence.
I concur with Judge Cooper’s dissenting opinion that the state may only appeal a sentencing error by grace, and not by right. However, it is immaterial whether the state had the right to appeal the sentencing error or not, because we have held that we could raise the issue on our own. Jones v. State, supra.
I would affirm the appellant’s conviction, but reverse and remand to the trial court for resentencing.
Cooper, J., joins in this dissent.