Cook v. State , 46 Ark. App. 169 ( 1994 )

Judith Rogers, Judge,

concurring. I am in full agreement with the result reached in the opinion authored by Chief Judge Jennings; however, I write separately to express my view as to the reason that we do not, and cannot, address the State’s argument requesting the correction of the illegal sentence.

As pointed out by Judge Jennings, when a trial court imposes an illegal sentence, one that is not authorized by statute, it is treated as a matter similar to that of subject matter jurisdiction. Jones v. State, 27 Ark. App. 44, 765 S.W.2d 15 (1989). In keeping with the standards applicable to a question of subject matter jurisdiction, we, as an appellate court, will address the appealing party’s argument alleging that such an illegal sentence has been imposed, despite the absence of an objection below, and also we, as an appellate court, may raise the issue on our own, sua sponte. Id. This state of affairs exists because, as stated, the imposition of such an illegal sentence is akin to the question of the trial court’s subject matter jurisdiction. However, as the majority recognizes, in this instance it is not truly an issue of subject matter jurisdiction. Cf, e.g., Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983) (where the trial court loses jurisdiction to the executive branch upon the execution of a valid sentence).

The dissent maintains that we should redress the State’s claim of error in this case because we can raise the issue of an illegal sentence sua sponte, or address such arguments when made for the first time on appeal. The fundamental distinction to be made here, however, is that we, in this court, must first possess the authority to act in order to review the action of the trial court. In other words, this court must first have jurisdiction before we can raise an issue on our own or review this claim of error when no objection has been made. Because the State did not appeal from the judgment, we have no jurisdiction to redress the State’s argument, and without jurisdiction the standards relied upon by the dissent simply do not come into play.

As is noted in Judge Jennings’ opinion, the State can appeal from a judgment imposing a sentence which is less than the term authorized by statute. See State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1993); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993); Ark. R. Crim. P. 36.10. Thus, in light of the appellant’s direct appeal, the State might have contested the admittedly illegal sentence by pursuing a cross-appeal from the judgment. Significantly, however, it did not choose that avenue of relief. As a consequence, the issue is simply not properly before us because, in the absence of a cross-appeal, we are without jurisdiction to entertain the argument.

It is necessary for an appellee to file a cross-appeal from a trial court’s order when the appellee is seeking affirmative relief, something more than it received in the lower court. Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993); Independence Federal Savings & Loan Ass’n. v. Davis, 278 Ark. 387, 646 S.W.2d 336 (1983); Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). Since the State here, as appellee, is seeking affirmative relief, it was required to file a cross-appeal from the judgment. It is a matter of routine appellate procedure that we do not address issues raised by an appellee when no cross-appeal has been filed. City of Marion v. Baioni, 312 Ark. 423, 850 S.W.2d 1 (1993); Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993); Pledger v. Illinois Tool Works, Inc., 306 Ark. 134, 812 S.W.2d 101 (1991); Hasha v. City of Fayetteville, supra; Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991); Egg City of Arkansas v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991); Independence Federal Savings & Loan Ass’n. v. Davis, supra; Elcare, Inc. v. Gocio, 267 Ark. 605, 593 S.W.2d 159 (1980); Tim Wargo & Sons v. Equitable Life Ass. Soc’y., 34 Ark. App. 216, 809 S.W.2d 375 (1991); Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986). This is so because we are without jurisdiction to do so. Brown v. Minor, 305 Ark. 134, 812 S.W.2d 101 (1991).

Since we lack jurisdiction, our declination to address the issue is unquestionably not a matter of favoring appellants in criminal cases over the interests of the State. When a criminal defendant has appealed from the judgment of the lower court, he or she has invoked the jurisdiction of this court which thereby enables us to grant affirmative relief. We are then at liberty to review the question of an illegal sentence imposed to his or her detriment, by raising the issue on our own and without an objection below. Had the State taken a cross-appeal from the judgment in this case, we would then be in a position to address the argument, regardless of whether it was being raised for the first time on appeal. Unfortunately, the State has not availed itself of a remedy before this court, and we are not able to reach the issue. I am in agreement, therefore, with the holding that, absent an appeal, we cannot address the issue of the illegal sentence raised by the State in its brief.

Although I, as a judge on this court, am in no position to interpret the statute, it appears that the State is not left without a remedy as it might pursue relief under Ark. Code Ann. § 16-90-111 (Supp. 1991). I am in agreement with the dissenting view that any questions concerning the meaning of the words contained in the statute, “at any time,” are of no concern to us in the instant case.

I am authorized to state that Judge John Mauzy Pittman joins in this opinion.