Wade v. State
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Cite as 2011 Ark. App. 464
ARKANSAS COURT OF APPEALS
DIVISION IV
CACR10-542
No.
OTIS WADE
Opinion Delivered
APPELLANT
June 29, 2011
V.
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
[NO. CR2008-1037]
STATE OF ARKANSAS
HONORABLE CHARLES DAVID
BURNETT, JUDGE
APPELLEE
REVERSED AND REMANDED
JOSEPHINE LINKER HART, Judge
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
Cite as 2011 Ark. App. 464
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 After a hearing on February 18, 2010, Wade’s probation was revoked, and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,1 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.
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.
V AUGHT, C.J., and G LOVER, J., agree.
1
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.
2
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