dissenting. I respectfully dissent. The appellant was sentenced by the trial court to fifteen years in the Arkansas Department of Correction. Under the current parole statutes, Ark. Stat. Ann. §§ 43-2828—2833 (Repl. 1977 & Supp. 1985), he was to serve five years of the sentence as he was unquestionably a “first offender” as defined in the statute. While serving this sentence he committed crimes for which he was sentenced to serve an additional four years, consecutive to the sentence of fifteen years which he had been serving. The Arkansas Department of Correction subsequently reclassified him as a second offender and related it back to the first sentence. Under the Department of Correction’s application of the statute and this Court’s interpretation of it in the present case, the appellant is now required to serve at least one-half of the original sentence.
The effect of the Arkansas Department of Correction’s action is to resentence him on the first offense and require him to serve a longer sentence than imposed by the trial court. This action is clearly ex post facto as applied to the original sentence. He now must serve time on the first offense which was not required at the time of the first sentencing.
Act 93 of 1977 undoubtedly was intended to lengthen the period of confinement imposed for subsequent offenses committed by persons who had been previously incarcerated for a felony. The majority opinion cites the applicable statute, but fails to quote the determinative section thereof. Ark. Stat. Ann. § 43-2828(1) (Repl. 1977) defines “first offenders” as “inmates convicted of one or more felonies but who have not been incarcerated ... for a crime which was a felony . . . prior to being sentenced to a correctional institution in this state for the offense or offenses for which they are being classified. [Emphasis added.]” For the purposes of the application of this statute to the original sentence, the appellant clearly remained a “first offender”; he was re-classified as a “second offender” for an offense prior to which he had never been incarcerated.
The legislature is supposed to enact laws and the courts are supposed to interpret and apply the laws. The Arkansas Department of Correction is required to operate pursuant to the laws of the state. However, it now appears the Arkansas Department of Correction may interpret the law as it sees fit in spite of the plain words of the statute.
Certainly appellant could correctly and legally be compelled to serve one-half of the second sentence because that is what the law states. However, to increase a sentence already being served is most certainly ex post facto and fundamentally unfair.