Ark. Code Ann. § 16-85-407 (2020)

Research References

Ark. L. Rev.

Criminal Procedure — Amendment of Indictments and Informations, 9 Ark. L. Rev. 62.

Case Notes

In General.

Amendment of an indictment, or by implication an information, may be made with leave of court unless the amendment changes the nature of the crime charged or the degree of the crime charged; that holds true even after the jury has been sworn unless the amendment creates an unfair surprise. Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994).

Construction.

This section, though limiting amendments to matters of form, must be read in connection with § 16-85-403. Underwood v. State, 205 Ark. 864, 171 S.W.2d 304 (1943).

Alternative Charges.

The rule permitting alternative charges for the same offense, § 16-85-404(a), is not in conflict with subsection (b) of this section, which prohibits an amendment to an indictment which changes the nature or degree of the crime charged. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995).

Change in Nature or Degree.

Amendment held not to change the nature or degree of the crime charged. Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940); Ingle v. State, 211 Ark. 39, 198 S.W.2d 996 (1947); Lee v. State, 229 Ark. 354, 315 S.W.2d 916 (1958), cert. denied, Lee v. Arkansas, 359 U.S. 930, 79 S. Ct. 616 (1959); Castle v. State, 229 Ark. 478, 316 S.W.2d 701 (1958); Silas v. State, 232 Ark. 248, 337 S.W.2d 644 (1960), cert. denied, Silas v. Arkansas, 365 U.S. 821, 81 S. Ct. 705 (1961); Washington v. State, 248 Ark. 318, 451 S.W.2d 449, 1970 Ark. LEXIS 1218 (1970); Murray v. State, 249 Ark. 887, 462 S.W.2d 438 (1971); Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971); Albright v. State, 253 Ark. 671, 488 S.W.2d 11 (1972); Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977); Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978); Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979); Workman v. State, 267 Ark. 103, 589 S.W.2d 20 (1979); Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982); Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984); Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985).

Amendment reducing charge held proper. Silas v. State, 232 Ark. 248, 337 S.W.2d 644 (1960), cert. denied, Silas v. Arkansas, 365 U.S. 821, 81 S. Ct. 705 (1961).

This section should not be construed to permit a defendant to complain of a change that is wholly to his advantage; therefore the trial court was not in error in allowing the state to reduce an original charge of capital murder to the lesser offense of first-degree murder. Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977).

Amendment held to change the nature or degree of the crime charged. Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982), overruled in part, White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

Amendment of an information which upgraded the offense was proper where the amendment did not change the nature or degree of the offense but authorized a more severe penalty and, although the prosecutor did not amend the information until the day of trial, defendant did not claim surprise, ask the trial judge for a continuance or tender proof of prejudice on appeal. Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985).

Where the only effect of the amendment to the information was to split the original single count of capital murder into two counts, under the new statutory definition of that offense, the amendment was a matter of form that did not change the nature of the offense charged. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991).

Defendant rightly invoked subsection (b) of this section on the basis that the degree of the offenses was changed when the two counts were amended from attempted rape to rape, but no prejudice resulted from the amendment. Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993).

Denial of a continuance to a defendant did not violate due process; although the information was amended the day before trial from a charge of rape of someone less than 14 years old by forcible compulsion to rape by forcible compulsion in violation of § 5-14-103(a)(1), the nature of the crime charged did not change, pursuant to subsection (b) of this section. Green v. State, 2012 Ark. 19, 386 S.W.3d 413 (2012).

Trial court did not erroneously allow an information charging rape by forcible compulsion and terroristic threatening to be amended on the first day of trial to add physical helplessness as an alternative means of committing rape because the amendment addressed only the manner by which the rape was committed and did not change the nature or degree of the rape charge, and defendant could not show that the amendment resulted in prejudice through unfair surprise because he failed to move for a continuance and failed to claim surprise after he was put on notice that the State planned to amend the information. Harris v. State, 2012 Ark. App. 651 (2012).

Ineffective Assistance of Counsel.

Trial court's decision to deny appellant's motion for postconviction relief was not clearly erroneous because with regard to counsel's decision not to move to quash the second amended information or for a continuance, appellant failed to overcome the presumption that counsel was effective; appellant did not show how the addition of the second charge of aggravated robbery impeded his ability to prepare his defense. Carter v. State, 2015 Ark. 166, 460 S.W.3d 781 (2015).

No Effect on Jurisdiction.

Defendant was properly convicted of rape despite his claim that he was charged with first-degree sexual assault, and the information against him was not amended. This section related to matters of notice and prejudice and provided a criminal defendant with protection against being prejudiced through surprise; thus, it was procedural in nature, not jurisdictional, and a violation of the statute did not divest the trial court of its authority to convict and sentence a defendant. VanOven v. State, 2011 Ark. App. 46, 380 S.W.3d 507 (2011).

Prejudice or Surprise.

Defendant held not to have been surprised or prejudiced by amendment. Albright v. State, 253 Ark. 671, 488 S.W.2d 11 (1972); Workman v. State, 267 Ark. 103, 589 S.W.2d 20 (1979); Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981); Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984).

Defendant held prejudiced by amendment. Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979).

Trial court did not err in permitting the prosecutor to nolle prosse a first-degree murder charge and then file a new information charging defendant with capital felony murder where there was no surprise or prejudice to defendant and such procedure did not conflict with this section. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983).

Amendments to an information are permitted under this section if the amendment does not change the nature or degree of the crime charged, and if the accused is not surprised by the amendment. Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985).

Where defendant knew of the state's plan to amend three days prior to trial, and he did not move for a continuance, there was no prejudice in the trial court's allowance of the amendment. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991).

As a result of the state's filing of a sufficiently specific amended information, in itself a bill of particulars, defendant demonstrated no prejudice. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996), cert. denied, Nance v. Arkansas, 519 U.S. 847, 117 S. Ct. 134, 136 L. Ed. 2d 83 (1996).

Amended information by the State was proper where defendant was not surprised, made no motion for a continuance, and no prejudice was shown; as such, there was no need for reversal under this section. Hoover v. State, 353 Ark. 424, 108 S.W.3d 618 (2003).

There was no violation of this section when an information in a capital murder trial was amended a few days before trial to include a premeditation and deliberation element because defendant was not surprised by such; her own admissions showed that she acted in a premeditated and deliberative manner when she shot her husband as he slept, she had wanted to leave for a long time, and she fled with some of his belongings. Therefore, there was nothing wrong with including the premeditation and deliberation elements in the jury instructions. Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007).

Defendant was properly convicted of attempted residential burglary and first-degree criminal mischief; while defendant's counsel did object to the timing of an amendment to the information changing the charge from criminal trespass to criminal mischief, he never articulated how the late filing of the amendment would prejudice defendant where the defense at trial was that he did not commit the crimes alleged and was elsewhere at the time of their commission. Moore v. State, 2015 Ark. App. 58 (2015).

Validity of Amendment.

Particular amendments held proper. Brewer v. State, 195 Ark. 477, 112 S.W.2d 976 (1938); Johnson v. State, 197 Ark. 1016, 126 S.W.2d 289 (1939); Bennett v. State, 201 Ark. 237, 144 S.W.2d 476 (1940); Tate v. State, 204 Ark. 470, 163 S.W.2d 150 (1942); Melton v. State, 212 Ark. 968, 209 S.W.2d 99 (1948); Cooley v. State, 213 Ark. 503, 211 S.W.2d 114 (1948).

Defect in information held cured by amendment. Underwood v. State, 205 Ark. 864, 171 S.W.2d 304 (1943).

Information amended by deleting certain words. Massey v. State, 207 Ark. 675, 182 S.W.2d 671 (1944).

Court allowed prosecutor to insert name of defendant in charging clause where the body of the information showed who was accused by the information. Williams v. State, 215 Ark. 757, 223 S.W.2d 190, 1949 Ark. LEXIS 820 (1949).

Amendment held invalid. Hardwick v. State, 220 Ark. 464, 248 S.W.2d 377 (1952).

Amending the information to read “serious physical injury” rather than “personal injury” to conform to the 1993 amendment of § 5-54-125(c)(3) after prosecution had presented its case-in-chief changed neither the degree nor the nature of the offense charged, and thus no error occurred. Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995).

Pretrial amendment of an information that charged capital murder on the basis of felony murder to add, as an alternative, the charge of capital murder on the basis of premeditated and deliberated purpose, did not change the nature of the crime charged in violation of subsection (b), nor did the amendment adding an allegation of habitual offender change the nature or degree of the crime. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996), cert. denied, Nance v. Arkansas, 519 U.S. 847, 117 S. Ct. 134, 136 L. Ed. 2d 83 (1996).

There is no requirement that an amendment to an information be made in writing. Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996).

Even though a prosecutor was not allowed to amend a felony information under § 16-85-407 in a theft of property case to show the value of a vehicle stolen since that changed the class of the crime, there was no reversible error because the sentence imposed was less than the maximum for either the amended or the original charge. Therefore, defendant was not prejudiced. Ward v. State, 97 Ark. App. 294, 248 S.W.3d 489 (2007).

Circuit court did not err when it allowed the state to amend a felony information to include a habitual-offender allegation on the morning of defendant's trial for possession of a firearm by a felon, because the amendment did not change the nature or degree of the crime, but simply authorized a more severe punishment. Glaze v. State, 2011 Ark. App. 283, 378 S.W.3d 897 (2011), vacated, 2011 Ark. 464, 385 S.W.3d 203 (2011).

State's amendment of an information did not violate this section because the amendment did not constitute a severance of offenses under Ark. R. Crim. P. 22.1(c), and the evidence would have been introduced in any case as part of the events leading up to the shooting whether it was included in the charging instrument or not; the only offense charged in the case was first-degree battery under § 5-13-201(a)(3), and the amendment did not change the nature or degree of the crime but merely clarified the manner in which the offense was committed. Reed v. State, 2011 Ark. App. 352, 383 S.W.3d 881 (2011).

Trial court committed no error in allowing the state to orally amend the information to include the contra pacem clauses as required by Ark. Const. Art. 7, § 49 because the amendment conformed to the requirements of this section; the amendment adding the contra pacem clauses did not change the nature or degree of the crimes charged, nor did it compromise defendant's ability to make a defense, the amendment resulted in no prejudice, and defendant did not claim surprise or request a continuance after the amendment was granted. Walker v. State, 2012 Ark. App. 61, 389 S.W.3d 10 (2012).

Cited: Crabtree v. State, 238 Ark. 358, 381 S.W.2d 729 (1964); Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974); Dolphus v. State, 256 Ark. 248, 506 S.W.2d 538 (1974); Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985); Allen v. State, 296 Ark. 33, 751 S.W.2d 347 (1988); Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988); Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989); Sossamon v. State, 31 Ark. App. 131, 789 S.W.2d 738 (1990); Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994); Kelch v. Erwin, 333 Ark. 567, 970 S.W.2d 255 (1998); Hoyle v. State, 2011 Ark. 321, 388 S.W.3d 901 (2011); Martinez v. State, 2014 Ark. App. 182, 432 S.W.3d 689 (2014).