dissenting.
I agree that the majority correctly states the law regarding the novelty of Wallace’s double jeopardy claim. I dissent because I believe that traditional cause and prejudice analysis cannot be applied to deny relief when a conviction and sentence are void.
Wallace sought correction of his illegal sentence under Rule 37 of the Arkansas Rules of Criminal Procedure. The Rule 37 that was in effect when Wallace was convicted contained no time limitation for presenting a claim that a judgment of conviction was void, but the rule limited a person to one' petition. Ark.R.Crim.P, 37.2(e). Because Wallace did not include this claim in his first Rule 37 petition, the Arkansas Supreme Court rejected his second petition without considering its merits.
, In 1983 Arkansas enacted a .statute that allows correction of an illegal sentence at any time. Ark.Code Ann. § 16-90-111 (1993 Supp.). Relief under this, statute is not available to Wallace, however, because his sentence was imposed in 1979 before the statute became law. See Williams v. State, 291 Ark. 255, 724 S.W.2d 158, 159 (1987).
The 1983 statute recognizes that there is no rational basis in law for prohibiting a person from raising at any time a claim that a sentence is void. Given the undisputed fact that it was illegal to convict Wallace for both capital murder and the lesser-included offense of kidnapping, it is a clear violation of due process not to extend relief under either Rule 37 or the statute to persons like Wallace who were convicted and sentenced before 1983.