Opinion
[15 Ark.App. 344] MAYFIELD, Judge.
MAYFIELD, Judge, concurring.
The majority opinion, 692 S.W.2d 626, recognizes that the appellant "contends that the trial court exceeded the bounds of its authority in imposing a felony sentence for what he insists is a misdemeanor." In response to appellant's argument that this is a jurisdictional issue that can be raised for the first time on appeal, the majority cites the recent case of Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985). In that case the appellant contended his convictions for manufacturing and possessing marijuana should be reversed because, when the alleged offenses occurred, they were neither felonies or misdemeanors. The Arkansas Supreme Court held this issue could not be raised for the first time on appeal since the appellant conceded that the trial court would have been without jurisdiction only if the offenses were neither felonies nor misdemeanors and the appellate court rejected the argument that they were neither.
However, the appellant's argument in the instant case is that the trial court did not have the authority to sentence him to the Arkansas Department of Correction for what he contends is a misdemeanor. This is not an unreasonable position in light of Ark.Stat.Ann. § 41-902 (Repl. 1977) which provides that a defendant convicted of a felony and sentenced to imprisonment "shall be committed to the custody of the Department of Correction" and a defendant convicted of a misdemeanor and sentenced to imprisonment "shall be committed to the county jail or other authorized institution designated by the court."
The answer seems to be that the lack of "authority" is not the same as lack of "jurisdiction" and it is only lack of "jurisdiction" that can be raised on direct appeal for the first time. This, I think, explains the cases cited by appellant.
Thus in Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978), the statutory requirement that a revocation hearing shall be conducted within 60 days after the defendant's arrest was not a jurisdictional limitation, and, therefore, the failure to have a hearing within that period could not be questioned for the first time on appeal. So, in the instant case, the appellant was convicted of an offense and the court had the jurisdiction to sentence him. Therefore, he could not, for the first time on appeal, question the sentence imposed.
In White v. State, 260 Ark. 361, 538 S.W.2d 550 (1976), the defendant was found guilty of a misdemeanor offense--possession of marijuana--and in a direct appeal he made, for the first time, the argument that mere possession of marijuana was not a misdemeanor. The Arkansas Supreme Court agreed possession was not a misdemeanor and said, "We find no merit to the contention that the issue was not properly raised in the trial court." Thus, in that case, the direct appeal was allowed because the defendant was simply not charged with an offense and, therefore, the court had no jurisdiction to convict him.
White also cited Switzer v. Golden, 224 Ark. 543, 274 S.W.2d 769 (1955), which is somewhat like the case at bar. There the trial court had "exceeded its jurisdiction in sentencing the defendant to the penitentiary on a plea of guilty to a felony when he was only charged with a misdemeanor." However, unlike the case at bar, Switzer was not a direct appeal but was before the Arkansas Supreme Court on writ of certiorari. This also explains Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983), where a defendant had been sentenced in violation of the statutory law but did not raise the issue on appeal. Nevertheless, in a petition for postconviction relief under A.R.Cr.P. Rule 37, the court set aside the improper portion of the sentence. See also Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982). It should be noted, however, that the instant case is a direct appeal and not governed by the same rule as governed Switzer, Robinson, and Rowe.
The case of Griffin v. State, 2 Ark.App. 145, 617 S.W.2d 21 (1981), cited by appellant stands on a different footing. The appellant says that case was remanded for resentencing even though the appellant there was raising the point for the first time. But the opinion in that case points out that the appellant did make objections to the sufficiency of the evidence to support the crime for which the appellate court held he had been erroneously sentenced, and this was found to be enough to raise the issue on appeal.
A case not cited by appellant, but worth noting, is Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983), where the appellate court held the trial court was wrong on a point the opinion specifically states was raised on appeal for the first time. In that case, however, the court had already said the case had to be reversed for a new trial and, apparently, the court simply passed upon the point raised because the case was being reversed anyway.
I concur in the result of the majority opinion but submit the above in an attempt to reconcile the cases that have been cited to us in this case, as well as in other cases, as authority for appellate review of points raised for the first time on appeal.