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Banks v. State10/16/2003
hether it was permissible to stack a specific subsequent-offense- penalty enhancement statute upon the general habitual criminal statute. This court concluded that is was impermissible. In reaching this conclusion, the court relied on its well-established principles of statutory construction, and held:
By applying these rules of construction we are satisfied the legislature did not intend this specific criminal enhancement statute should be coupled with our general criminal enhancement statute for the resulting purpose of creating a greater sentence than if either statute had been applied singly. This is in accord with our decision in Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1985), where we were faced with an analogous situation involving the same Omnibus DWI Act at issue in the case before us. We applied the principle of the specific act overriding a general act on the same subject and held that the specific mandatory sentencing requirement under that act, excluded the discretionary probation provided for in our general criminal statutes.
Id. at 41-42, 746 S.W.2d at 546. Accordingly, under the precedent set forth in Lawson, it was impermissible to sentence Appellant under the specific provision of section 5-26-305(b), which enhanced the offense to a Class D felony, and to also sentence him under the general habitual offender statute, thus, resulting in an illegal sentence of twelve years' imprisonment.
Because it was error for the State to enhance Appellant's sentence pursuant to the specific provisions of section 5-26-305(b) and the general habitual offender provision codified in section 5-4-501, Appellant's illegal sentence must be corrected. Accordingly, we reverse and remand this matter to the circuit court with instructions that Appellant's illegal sentence be corrected so that it falls within the range allowed for a Class D felony.
Reversed and remanded.
Brown, J., not particpating.
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