Short Law Firm, by: Lee D. Short, Little Rock, for appellant., Leslie Rutledge, Att'y Gen., by: Darnisa Evans Johnson, Deputy Att'y Gen., and Christian Harris, Ass't Att'y Gen., for appellee., In 2012, the Supreme Court held in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that the Eighth Amendment forbids a mandatory sentence of life without parole for a juvenile offender and that a juvenile facing a life-without-parole sentence is entitled to a sentencing hearing at which a judge or jury may consider the individual characteristics of the defendant and the circumstances of the crime. In Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906, this court decided a companion case to Miller on remand from the Supreme Court. We granted habeas relief and remanded to the circuit court for a sentencing hearing where Jackson could present Miller evidence for consideration. Id. We further held that Jackson's sentence must fall within the statutory discretionary sentencing range for a Class Y felony, which is ten to forty years or life. Id. Subsequent to Jackson , we held in Kelley v. Gordon , 2015 Ark. 277, 465 S.W.3d 842, that Miller was to be applied retroactively to other cases on collateral review.1, At the hearing on the motion, the State asserted that the FMSA applied retroactively to Howell and that the circuit court had a duty to sentence him under that Act. The circuit court agreed and sentenced Howell to life imprisonment with the possibility of parole after thirty years pursuant to the new penalty provisions of the FSMA.2 An order to this effect, along with a new sentencing order, was entered on May 4, 2017. Before entering these orders, the circuit court left the record open for Howell to supplement his prior response with a motion for postconviction relief, to which he attached copies of sentencing orders pertaining to fourteen similarly situated Miller defendants who had already been resentenced following either negotiated pleas or resentencing hearings. The circuit court denied this motion on May 24, 2017. Howell filed a timely notice of appeal from the circuit court's orders., In response to Howell's contention that he is entitled to a new sentencing hearing pursuant to Harris , the State asserts that this argument is not preserved for appellate review because he did not raise the issue of whether the FSMA's revised penalty could be applied retroactively to him either in his response to the State's motion to discontinue resentencing or at the hearing. Howell contends that this issue was adequately preserved under the circumstances in this case. We agree., Accordingly, we agree with Howell that the issues decided in Harris are properly before us and are controlling in this appeal. In Harris , this court concluded that the revised punishment provided under the FSMA for capital murder committed by a juvenile, which is life imprisonment with the possibility of parole after serving a minimum of thirty years' imprisonment, is not retroactive and applies only to crimes committed on or after March 20, 2017, the effective date of the Act. Id. at 11-13, 547 S.W.3d at 70-71 (citing §§ 3, 6 of the FSMA, codified at Ark. Code Ann. §§ 5-4-104(b), 5-10-101(c)(1)(B) (Supp. 2017) ). Furthermore, we concluded that the FSMA's parole-eligibility provisions did not apply to Harris at the time of his resentencing hearing because his sentence had been vacated, and he was no longer serving a sentence to which parole eligibility could attach. Id. We held that Harris was in the same situation as the defendant in Jackson and that he was entitled to a hearing at which he could present Miller evidence and to sentencing within the discretionary range for a Class Y felony, which is ten to forty years or life. Id.

Womack, Wynne.

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