dissenting. I respectfully dissent. As the majority indicates by its quote from Hunt v. State, 354 Ark. 682, 128 S.W.3d 820 (2003), penal statutes are strictly construed with all doubts resolved in favor of the defendant, nothing being taken as intended which is not clearly expressed. This court follows the universal rule that criminal statutes are strictly construed and no case is to be brought by construction within a statute unless it is “completely within its words.” Austin v. State, 259 Ark. 802, 804, 536 S.W.2d 699, 700 (1976); Lewis v. State, 220 Ark. 259, 262, 247 S.W.2d 195, 196 (1952); Casey v. State, 53 Ark. 334, 336, 14 S.W. 90, 90 (1890).
Williams asserts that Ark. Code Ann. § 5-4-104(a) (Repl. 1997) precludes a sentence of an additional period of imprisonment under Ark. Code Ann. § 16-90-120 (1987) because title 5 provides that a person convicted under title 5 may only be sentenced pursuant to chapter four of title 5. The majority’s initial holding is that “an ambiguity is created by the two statutes.” The majority is mistaken. Rather than an ambiguity, we face an issue of a conflict between two criminal statutes.
Section 5-4-104(a) (Repl. 1997) unambiguously and plainly provides that “[n]o defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.”1 A statute is construed just as it reads, giving the words their ordinary and usually accepted meaning. Bramlett v. State, 356 Ark. 200, 148 S.W.3d 278 (2004). When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Because section 5-4-104(a) is plain, there is no reason to resort to rules of statutory interpretation. Id.
Williams was charged, convicted, and sentenced under title 5, chapter four. Pursuant to the plain language of § 5-4-104(a), he could not be sentenced otherwise than in accordance with chapter four of title 5. However, he received an additional sentence under section 16-90-120. Section 16-90-120 imposes an “additional sentence.” See Walter v. State, 267 Ark. 155, 621 S.W.2d 428 (1979). There is a conflict between section 5-4-104, which limits sentencing to that allowed under chapter four of title 5, and section 16-90-120 which provides an additional sentence for use of a firearm in the commission of any felony.
Statutes relating to the same subject should be read in a harmonious manner, if possible. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Reed v. State, 330 Ark. 645, 957 S.W.2d 174 (1997). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id. Williams was sentenced under title 5, chapter 4, for aggravated robbery. He received an additional term of imprisonment for commission of a felony by use of a firearm.2 The purpose or object of the two statutes is different. Section 5-4-401 (a)(1) (Repl. 1997) concerns a sentence for the commission of aggravated robbery, a Y felony, whereas section 16-90-120 concerns an additional period of confinement for the use of a firearm in the commission of any felony. The majority holds that the two sections can be read harmoniously to mean that a “minimum sentence” is imposed by title 5, whereas section 16-90-120 provides only a “sentence enhancement.” The majority’s holding itself shows that the two statutes do not concern the same subject matter because the majority states that one statute sets out the sentence and the other statute sets out an enhancement to the sentence. The two statutes cannot be harmonized.
Section 5-4-104 plainly and unambiguously provides that no defendant convicted of an offense under the Arkansas Criminal Code shall be sentenced other than pursuant to chapter four. Section 16-90-120 plainly and unambiguously provides for a sentence other than pursuant to chapter four of title 5. Williams was charged, convicted, and sentenced for an offense under chapter four of title 5. He was not subject to sentencing under section 16-90-120. If the legislature wishes it to be otherwise, the statutes must be amended.3
Further, in light of the majority’s conclusion that section 16-90-120 applies to the title 5 offense of aggravated robbery, which by its elements involves the use of a deadly weapon, I would suggest that the General Assembly review this matter to determine if this was the result intended. An analysis of statutory history shows that the law on enhancement for use of a firearm is confused at best. Section 16-90-120 is the current codification of Act 78 of 1969. Act 78 was initially codified as Ark. Stat. Ann. §§ 43-2336, 43-2337 and 43-23-38 (Supp. 1969). According to the Commentary, section 1004 of Act 280 of 1975, which became Ark. Stat. Ann. § 41-1004, and 1987 Ark. Code Ann. § 5-4-104(a), was based on Ark. Stat. Ann. § 43-2336. This implies that Ark. Stat. Ann. § 43-2336 was replaced by the adoption of Ark. Stat. Ann. § 41-1004 when the Arkansas Criminal Code was enacted. This conclusion is reinforced by the Commentary to Ark. Stat. Ann. § 41-1004, which characterizes Ark. Stat. Ann. § 43-2336 as “old law,” and Ark. Stat. Ann. §§ 43-2336, 43-2337 and 43-2338 as “prior law.” It should also be noted that Act 280 of 1975 was intended to “reform, revise and codify the substantive criminal law of the State of Arkansas.” Further, section 3201 of Act 280 of 1975 repealed all laws and parts of law in conflict with the Arkansas Criminal Code.
• However, even though it appears from act 280 of 1975 that section 1004, codified as Ark. Stat. Ann. § 41-1004 in the 1977, replacement volume 4, replaced Ark. Stat. Ann. §§ 43-2336, 43-2337 and 43-2338, they still appeared in Volume 4A of the Arkansas Statues when the volume was replaced in 1977. When the code was reorganized and renumbered in 1987, Ark. Stat. Ann. §§ 43-2336, 43-2337 and 43-2338 became Ark. Code Ann. §16-90-120.
What further reinforces the conclusion that Ark. Stat. Ann. § 41-1004 replaced and repealed Ark. Stat. Ann. §§ 43-2336, 43-2337 and 43-2338 is that Act 280 of 1975 in section 1004 included additional language that modified Ark. Stat. Ann. § 43-2336 on which section 1004 was based:
(1) If a defendant is convicted of a felony and the trier of fact finds that the person so convicted employed a firearm in the course of or in furtherance of the felony, or in the immediate flight therefrom, the maximum permissible sentence otherwise authorized by section 901 [§ 41-901] or section 1001 [§ 41-1001] shall be extended by fifteen years.
(2) Subsection (1) shall not apply to a defendant convicted of a felony, an element of which is:
(a) employing or using, or threatening or attempting to employ or use, a deadly weapon; or
(b) being armed with a deadly weapon; or
(c) possessing a deadly weapon; or
(d) furnishing a deadly weapon; or
(e) carrying a deadly weapon.
The Commentary to § 41-10044 stated that:
[s]ubsection (2) is necessitated by the fact that a number of Code offenses are graded more severely when a deadly weapon is involved. It is obviously unfair to convict a person of a more serious felony because he used a deadly weapon and then further increase the penalty for the felony because the deadly weapon was a firearm.
In Rust v. State, 263 Ark. 350, 565 S.W.2d 19 (1978), Justice George Rose Smith stated, “The appended Commentary, which was before the General Assembly when the statute was adopted, explains the legislative intent in the enactment of subsection (2). . . .” He further noted that a “deadly weapon” was first defined in the criminal code as a firearm, and went on to state:
As the Commentary explains, subsection (2) of the firearm statute is meant to apply when the Code grades an offense more severely because a deadly weapon is used. The difference between robbery and aggravated robbery illustrates the legislative purpose. Simple robbery is defined as the employment or threatened employment of physical force upon another person with the purpose of committing a theft. It is a class B felony. § 41-2103. Aggravated robbery is defined as robbery committed by one who is armed with a deadly weapon or who inflicts or attempts to inflict death or serious physical injury. It is a class A felony. § 41-2102. Hence one who commits robbery with a firearm necessarily commits aggravated robbery; so enhanced punishment under the firearm statute is deemed unfair.
Rust, 263 Ark. at 353, 565 S.W.2d at 20 (emphasis added).
Ark. Stat. Ann. § 41-1004, which was cited by the court in Rust and became Ark. Code Ann. § 5-4-505 in 1987. In identical acts 532 and 550 of 1993, Ark. Code Ann. § 5-4-505 was repealed and, Ark. Code Ann. § 16-90-804 (Supp. 1993) was enacted. Similar to repealed Ark. Code Ann. § 5-4-505, Ark. Code Ann. § 16-90-804 provides:
(E) The offender employed a firearm in the course of or in furtherance of the felony, or in immediate flight therefrom. This factor does not apply to an offender convicted of a felony, an element of which is:
(i) Employing or using, or threatening or attempting to employ or use, a deadly weapon; or
(ii) Being armed with a deadly weapon; or
(iii) Possessing a deadly weapon; or
(iv) Furnishing a deadly weapon; or
(v) Carrying a deadly weapon ....
Ark. Code Ann. § 16-90-804(c)(2)(E)(i) (Supp. 2005).5 However, section 16-90-804 applies only to cases where the court, rather than the jury, sentences the defendant. The General Assembly may wish to address whether Ark. Code Ann. § 16-90-120 was repealed, and if not, whether it should be moved to title 5. Additionally, the General Assembly may wish to address the unequal treatment in light of the perceived unfairness of convicting a person of a more serious felony because he or she used a deadly weapon and then further increasing the penalty for the felony because the deadly weapon was a firearm. I believe that unfairness still remains.
Imber, J., joins.Section 5-1-101 (Repl. 1997) provides that title 5 shall be known as the “Arkansas Criminal Code” and section 5-1-103 (Repl. 1997) provides that the Arkansas Criminal Code governs prosecution of “any offense defined by the code ...” Williams was convicted and sentenced under title 5 for violation of Ark. Code Ann. § 5-12-103 (Repl. 1997).
Where, as in this case, sentence was imposed by the jury, there is no statute in title 5, chapter 4, which imposes a sentence based on use of a firearm.
I note that in 1993, identical acts 532 and 550 repealed Ark. Code Ann. § 5-4-505 (Use of a Firearm). Section 5-4-505 required imposition of an additional fifteen years where a firearm was used and was replaced by Ark. Code Ann. § 16-90-803 (Supp. 2005) which allows a judge to deviate from sentencing guidelines under certain conditions. Both these sections involve sentencing by the court rather than a jury as in the present case.
Section 41-1004 is the prior version of § 5-4-505, which, as the majority points out in a footnote, was repealed as of January 1,1994.
Repealing Ark. Code Ann. § 5-4-505 (Repl. 1993) and replacing it with Ark. Code Ann. § 16-90-804 (Supp. 2005) again raises the issue of whether the statute applies to an offense charged and prosecuted under tide 5 chapter four.