dissenting. I dissent primarily on the grounds set out by this court in Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981). This is the same case but a different appellant. We reversed the double conviction in the first Swaite and affirm it in the present case. The majority hang their decision on the fact that the trial attorney in the present case failed to make a specific objection to being convicted twice for the same conduct. It seems to me the only reason the majority does not invalidate the double sentencing in the present case, as they are doing in a case being handed down today, Singleton v. State, 274 Ark. 126, 623 S.W. 2d 180 (1981), is that they are afraid they will be accused of adopting the “plain error” rule. This should cause no concern because this rule has long ago been adopted even though it may not be specifically referred to as “plain error.” See Wilson & Dancy v. State, 261 Ark. 820, 552 S.W. 2d 223 (1977); Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); and by all means look at Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981), where we clearly held that it was plain error, or whatever you call it, to convict Earl of capital felony murder and aggravated robbery. Earl was convicted of capital felony murder and sentenced to life without parole. He was also given 50 years for aggravated robbery. In Earl we held that since aggravated robbery is established by proof of less than all the elements required to establish the commission of capital felony murder, the trial court erred in entering a judgment of conviction on more than one of the offenses. Other cases holding the “plain error” theory are Bell v. State, 223 Ark. 304, 265 S.W. 2d 709 (1954), and Hayes v. State, 269 Ark. 47, 598 S.W. 2d 91 (1980).
A fundamental reason for this court to take notice and correct the error is that it would prevent another Rule 37 hearing as we reasoned in Singleton v. State, supra, and an appeal from that and another opinion by this court. In addition to the waste of time and expense, the appellant will have prolonged the finality of his sentence. We have complained about undue delays in the administration of criminal justice. This decision only upholds such delay.
Needless to say, if aggravated robbery was a lesser included offense in Earl v. State, supra, it is the same in the present case where the charge is attempted capital felony murder with a firearm. As we clearly stated in Earl, the Arkansas statute prevents a double conviction when the same conduct of a defendant establishes more than one offense. In the present case the information charged the appellant with the crime of attempted capital felony murder by the use of a firearm. The court allowed the appellant to be convicted pursuant to Ark. Stat. Ann. § 41-1004 (Repl. 1977) which states:
(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 immediate flight therefrom, the maximum permissible sentence otherwise authorized by section 901 (§ 41-901) or section 1001 (§ 41-1001) shall be extended by fifteen (15) 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 . . .
Therefore, the above statute on its face would not allow for the enhancement of the sentence because by the very nature of the charge he used a deadly weapon. It was necessary to prove the use of the deadly weapon before he could be convicted of attempted capital felony murder as charged in the present case. Therefore, there are two reasons why appellant’s rights against double jeopardy have been violated. He has in reality been sentenced three times for the same conduct. In the case of Harris v. Oklahoma, 433 U.S. 682 (1977), the petitioner had been convicted of felony murder based on the accomplice’s killing of a victim during the course of an armed robbery. Subsequently petitioner was convicted on a separate information with the crime of robbery with a firearm. His motion to dismiss on the ground of double jeopardy clause of the Fifth Amendment was denied by the Oklahoma court. The United States Supreme Court reversed the conviction. In a per curiam the United States Supreme Court in Harris stated:
When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with the firearm, the double jeopardy clause bars prosecution of the lesser crime after conviction of the greater one.
It is only natural that it would bar conviction at the same time because he would still be placed in jeopardy twice for the same offense.
I would reverse because I believe the appellant has been punished three times for the same conduct. Therefore, a new trial should be granted.