Opinion
CA CR 10-542
Opinion Delivered June 29, 2011
Appeal from the Crittenden County Circuit Court, [No. CR2008-1037], Honorable Charles David Burnett, Judge, Reversed and Remanded.
This case is once more before us after we ordered rebriefing on January 19, 2011. In that opinion, we denied the motion to withdraw filed by Wade's appellate counsel and ordered an issue raised in Wade's pro se points to be briefed in adversarial form. That issue was whether Wade had received an illegal sentence when he received probation for a Class Y felony. We hold that Wade did receive an illegal sentence, and we reverse and remand to the trial court for further proceedings consistent with this opinion.
The issue of whether the appellant received an illegal sentence goes to subject-matter jurisdiction, and we may review the issue whether or not an objection was made in the circuit court. Richie v. State, 2009 Ark. App. 522, ___ S.W.3d ___. A sentence is void or illegal when the court lacks authority to impose it. Id.
According to a judgment and disposition order filed November 25, 2008, Wade pleaded guilty to simultaneous possession of drugs and a firearm, a Class Y felony. The trial court placed him on probation for sixty months. The State later filed a petition to revoke Wade's probation on March 20, 2009. After a hearing on February 18, 2010, Wade's probation was revoked, and he was sentenced to 300 months' imprisonment in the Arkansas Department of Correction.
In the version of the brief before us, Wade's appellate counsel essentially echoes the assertion made in Wade's aforementioned pro se points, that because probation was not authorized for a Class Y felony, the trial court erred in revoking his probation without correcting the original sentence. He asserts that his appeal should be dismissed. The State agrees that probation was not authorized for a Class Y felony. The State, however, urges us to remand this case to the trial court for resentencing.
We note that Wade's appellate counsel has chosen to retain the portion of his brief that attempted to comply with the Anders format. We believe this is a mere oversight in that this material is inconsistent with our order to brief the illegal-sentence issue.
Because probation was not authorized for Wade's underlying offense, that sentence was void. Accordingly, the subsequent revocation proceeding was also void. We therefore reverse and dismiss Wade's revocation and remand this case to the trial court. We note that the original judgment and commitment order reflects that Wade received probation pursuant to a negotiated plea. In remanding this case to the trial court, where Wade must be given a sentence within the range authorized by statute, we do not intend to foreclose the trial court from allowing Wade to withdraw his guilty plea.
Reversed and remanded.
VAUGHT, C.J., and GLOVER, J., agree.