The opinion
James R. Cooper, Judge, concurring in part, dissenting in part.
Today the majority travels a narrow, tortuous path to get to the wrong result, avoiding the correction of an illegal sentence. What is worse, the path they have chosen to get there is a path this Court has no authority to travel: the path of statutory construction or interpretation of Court Rules which is, with few exceptions, forbidden to us under Rule l-2(a)(3) of the Rules of the Supreme Court and Court of Appeals. Even if we had the authority to engage in the analysis employed by the majority to reach its result, we should not do so, because the result they reach is legally incorrect, logically unsound, wasteful of the limited resources available to trial courts, and contrary to the obvious and unambiguous intent of the legislature.
The majority’s opinion is premised on the State’s ability to appeal from an illegal sentence. As a general rule, the State has no right to appeal except as conferred by the constitution or rule of criminal procedure. State v. Tipton, 300 Ark. 211 , 779 S.W.2d 138 (1989). Generally, appeals by the State under Rule 36.10, Arkansas Rules of Criminal Procedure, do not affect the pending litigation, but in recent years our Supreme Court has allowed appeals by the State under 36.10, and remanded for resentenc-ing. No case, however, holds that such an appeal is required.
The essence of the majority’s decision is this: the State may appeal, and therefore must appeal in order to have an illegal sentence corrected. But this is contrary to the long-established practice of this Court of correcting illegal sentences which, like the sentence in the case at bar, appear on the face of the record. See, e.g., Jones v. State, 27 Ark. App. 24 , 765 S.W.2d 15 (1989). It is clear beyond question that we are authorized to correct illegal sentences sua sponte. Harmon v. State, 317 Ark. 47 , 876 S.W.2d 240 (1994). The majority does not, and cannot, explain how we lose our authority to examine the legality of a sentence on our own motion simply because the illegality favors the defendant rather than the State. Resentencing on remand is not barred by former jeopardy considerations, see State v. Townsend, 314 Ark. 427 , 863 S.W.2d 288 (1993), and no reasoned basis for this distinction is apparent. Instead, the majority has sub silentio interpreted Rule 36.10 of the Rules of Criminal Procedure as requiring an appeal by the State in order to correct a sentencing error favoring a defendant. No such requirement is stated, implied, or hinted at in the Rule, and such a construction is both outside our authority and incorrect.
I dissent and note that I agree with Judge Robbins’ opinion.
Robbins, J., joins in this dissent.