¶1concurring in part, dissenting in part. I agree that the conviction has to be reversed. However, the majority is reducing the sentence, in effect. In that regard I disagree. The court has taken the position that it has no authority to reduce a sentence except in certain instances. It can reduce a sentence in a capital punishment case. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977). Where a legal error has been made and it can be corrected without prejudice by reducing a sentence, a reduction can be made.
¶2While I feel this court has the appellate authority to so act, I do not presume that this power ought to be exercised in every instance.
¶3First of all, Arkansas has placed the responsibility for sentencing criminal defendants with the jury and the trial judge. While, in my judgment, that procedure is flawed, it is still the law and we should essentially respect it. The reduction in this case does not take into consideration either the sentiments of the judge or jury — it presumes those sentiments. It presumes that the prosecuting attorney, acting for the State of Arkansas, will decide if the proposed reduction ought to be accepted or the defendant retried. The offense in this case involves one of the most serious criminal offenses, aggravated robbery. The evidence was not disputed that a loaded gun was used and that at least one of the witnesses feared for her life. This is not the sort of crime where I think that we ought to presume the minimum sentence would be appropriate; that leaves only a retrial as an alternative.
¶4The majority states that the defendant will not be prejudiced by the reduction. That is not exactly correct because who can say he would have received five years’ imprisonment. I would concede that it is not likely the defendant would have been released on probation or received a lesser term than five years, but I cannot presume, as the majority does, that he would not have received such a sentence. The minimum sentence is not five years’ imprisonment; it is a suspended sentence with no imprisonment.
¶5The State offers no reason why a reduction should be granted in this case to cure an error. The error in this case was one that should not have been made because the statute clearly provides that when one is tried as an habitual offender and the conviction is for burglary and theft, that counts as only one conviction. Obviously the prosecuting attorney and the trial judge were not aware of the statute. The best way to deal with such errors is to require that the case be tried again. Not only is it therapeutic but it guarantees that neither the state nor the defendant will be prejudiced. I would remand the case for a new trial.