dissenting. I would hold that appellant was sentenced illegally because he was sentenced pursuant to a statute that in no way authorized the punishment imposed by the trial judge. Thus, I would hold that appellant’s illegal-sentence argument was preserved for appeal and would remand for resentencing under the correct statutory authority.
An illegal sentence is not only one that is illegal on its face, but it is also illegal if the circuit court lacked statutory authority to impose it. Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002); Blanks v. State, 300 Ark. 398, 779 S.W.2d 168 (1989); Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003). The trial judge here unquestionably had no authority to sentence appellant under Arkansas Code Annotated § 16-93-607 (1987) because that statute expressly applies only to Class Y, A, or B felonies, but appellant was convicted only of Class C and D felonies.
The statute under which appellant should have been sentenced, Arkansas Code Annotated § 5-4-403 (b) (Supp. 2003), authorized the trial judge to exercise his discretion in determining whether appellant’s sentences were to run consecutively or concurrently to appellant’s sentence for a parole violation. However, because appellant committed the offenses while on parole, the trial judge erroneously believed that under Arkansas Code Annotated § 16-93-607, he was required to run appellant’s sentences consecutively to appellant’s sentence for the parole violation. The trial judge stated from the bench: “I did make an entry of the fact that this, by statute, has to be consecutive to the parole violation.” Based upon this misunderstanding, the trial judge sentenced appellant pursuant to the wrong statute. The majority apparently recognizes that the trial court was without authority to act under § 16-93-607, but glosses over the trial court’s error by stating that § 16-93-607 was “inapplicable in this case.”
The majority then holds that because the appellant’s sentence was otherwise authorized under § 5-4-403, it was not illegal. However, this is not a case in which a defendant merely received the same sentence that he could have otherwise received under another statute. The trial judge’s initial error here is compounded because, in relying upon the wrong statute, he also failed to exercise discretion in sentencing. See, e.g., Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980) (reversing and remanding where the trial judge did not exercise his discretion to run sentences concurrently); see also Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985). We have no way to know whether the trial judge would have imposed a concurrent sentence or a consecutive sentence if he had correctly sentenced appellant pursuant to § 5-4-403, but we do know that the judge did not realize that he had such discretion and, therefore, failed to exercise any discretion. If, upon remand, the trial judge were to order appellant to serve the same sentence under the correct statute, at least he will have properly exercised his discretion and appellant will serve the sentence for the right reason.
I respectfully dissent.