Ark. Code Ann. § 16-90-107 (2026)

Research References

ALR.

Validity, Construction, and Application of State Statute Including “Sexually Motivated Offenses” Within Definition of Sex Offense for Purposes of Sentencing or Classification of Defendant as Sex Offender. 30 A.L.R.6th 373.

Ark. L. Rev.

Constitutional Law — Permissibility of Increased Sentence on Retrial, 24 Ark. L. Rev. 117.

Disposition of Offenders: Under Arkansas' New Criminal Code, 30 Ark. L. Rev. 222.

Case Notes

Constitutionality.

Statutes permitting the court to fix the punishment under certain circumstances are not unconstitutional. Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960).

In General.

Subsection (b) contemplates that sentence imposed shall be executed, unless the verdict is set aside. Holden v. State, 156 Ark. 521, 247 S.W. 768 (1923).

Applicability.

Subsection (d) of this section did not apply to defendant's case where the jury fixed his sentences at 20 years' imprisonment on a battery count and 10 years' imprisonment on a firearm count, recommended the terms be served consecutively, and its recommendation of an alternative sentence of probation was not binding on the court. McElroy v. State, 2018 Ark. App. 342, 553 S.W.3d 182 (2018).

Discretion of Court.

It is within the trial judge's discretion to set the punishment for a defendant anywhere within the statutory range of punishment provided for a particular crime. Noland v. State, 265 Ark. 764, 580 S.W.2d 953 (1979); Adams v. State, 25 Ark. App. 212, 755 S.W.2d 579 (1988).

Where, after the defendant entered a guilty plea to class C felony theft of property for which the maximum sentence is 10 years, a sentence of 6 years in prison with 2 years suspended on condition that defendant pay the sum of $135,000 at the rate of $200.00 per month, beginning 60 days after release from prison and continuing for 12 years, at which time a civil judgment would be entered for the outstanding balance, was not proper. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

Trial court did not abuse its discretion in denying defendant's motion to reduce his life sentence for the rape of his minor daughter as numerous witnesses testified to the alleged abuse of the victim, including the victim herself, and a nurse examiner testified to signs of extensive and ongoing sexual abuse; based on this evidence, the jury's verdict did not appear to be the result of passion or prejudice. McDonald v. State, 364 Ark. 491, 221 S.W.3d 349 (2006).

Excessive Verdict.

Where the jury imposes a fine in excess of that provided by law, the court should disregard the excess; on appeal, the judgment will be modified by striking out that portion assessing the excessive fine and affirmed. Russell v. State, 112 Ark. 282, 166 S.W. 540 (1914).

Instruction authorizing jury to fix punishment at both fine and imprisonment was held erroneous, but the error could be corrected by eliminating from judgment that part sentencing defendant to imprisonment. Craig v. State, 204 Ark. 798, 164 S.W.2d 1007 (1942).

Fixing by Court.

Court did not err in submitting to the jury a verdict form authorizing the jury to find defendant guilty without agreement of punishment, leaving the punishment to be fixed by the court, along with forms allowing the jury to find the defendant not guilty or guilty with punishment fixed by them. Downs v. State, 231 Ark. 466, 330 S.W.2d 281 (1959).

Court held authorized to fix punishment. Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960); Norton v. State, 260 Ark. 412, 540 S.W.2d 588 (1976); Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984).

Jury should not be told initially that they can let the court impose the punishment, but rather, they should only be told after they report that they have reached a verdict of guilty but are unable to agree on the punishment to be imposed. Ward v. State, 236 Ark. 878, 370 S.W.2d 425 (1963). But see Underwood v. State, 205 Ark. 864, 171 S.W.2d 304 (1943).

Instruction that sentencing could be left to court held proper. Knighten v. State, 210 Ark. 248, 195 S.W.2d 47 (1946); Keese v. State, 223 Ark. 261, 265 S.W.2d 542 (1954); Ward v. State, 236 Ark. 878, 370 S.W.2d 425 (1963).

Where the circumstances indicated that the jury had reached a verdict as to defendant's guilt, it was not error for the court, upon inquiry by the jury, to permit them to return for instruction by the court as to whether, if they were unable to agree upon punishment, they could let the court fix the punishment. Burford v. State, 242 Ark. 377, 413 S.W.2d 670 (1967).

Where the instruction was given as to the fixing of punishment by the trial court at a time prior to a finding of guilty by the jury, and the counsel made the timely objection, such instruction constituted reversible error. Weems v. State, 259 Ark. 532, 534 S.W.2d 753 (1976).

Trial court's sentencing held proper. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

Instructing the jury prior to a finding of guilty by the jury that they can let the court impose the punishment if they reach a verdict of guilty but are unable to agree on the punishment to be imposed is reversible error. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

The court properly imposed sentence on the defendant where one juror became ill after the jury rendered a guilty verdict and could not continue. Ashlock v. State, 64 Ark. App. 253, 983 S.W.2d 448 (1998).

Where the verdict form submitted by the jury the second time was proper, the trial court erred in taking the case from the jury based on the fact that the jury had recommended a sentence of “zero” for the Class D felony. Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000).

Where the jury convicted defendant of possession of cocaine with intent to deliver and recommended a sentence of 3 years' probation, the trial court was permitted to sentence defendant to 20 years' imprisonment rather than follow the jury's recommendation; the jury's recommendation of 3 years' probation was not authorized by former § 5-64-401(a)(1) (see now § 5-64-420), which required a minimum sentence of 20 years. Ewings v. State, 85 Ark. App. 411, 155 S.W.3d 715 (2004).

Use of the word “may” in § 5-4-702 does not mean that a jury has the discretion as to whether to impose an enhanced sentence where a crime of domestic violence was committed in the presence of a child; rather, it means the state had the option of seeking the enhancement. Thus, where no sentence was imposed by the jury, a trial court did not err by imposing one under this section. Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006).

Jurisdiction.

Municipal court was not exercising its criminal jurisdiction when it found defendant guilty of criminal offenses and ordered him to pay restitution. Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987).

Modification of Sentence.

Subsection (c) held inapplicable. Tabor v. State, 246 Ark. 983, 440 S.W.2d 536 (1969).

Sentence reduced from death to life imprisonment pursuant to subsection (c). Graham v. State, 253 Ark. 462, 486 S.W.2d 678 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Kuehn v. State, 253 Ark. 889, 489 S.W.2d 505 (1973).

Trial court was incorrect in holding subsection (c) applicable where the error in the classification of the crime by the trial court applied to both minimum and maximum penalties under the law and penalty was reduced to minimum prescribed by law. Estes v. State, 258 Ark. 597, 528 S.W.2d 138 (1975).

After defendant's valid sentence had been put into execution and an appeal was taken to the Supreme Court, the trial court was without jurisdiction to modify, amend or revise it, either during or after the term at which it was pronounced. Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979).

Where there was no evidence that the jury's sentence was based on passion or prejudice, court refused to reduce it. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

Where jury assessed punishment below minimum limit prescribed by law, subsection (d) required the trial judge to pronounce a sentence according to the lowest limit prescribed by law. Caldwell v. State, 268 Ark. 713, 595 S.W.2d 253 (Ct. App. 1980).

Where the judge said nothing about balancing the fine and imprisonment elements of the sentence when he reduced the fine and illegally increased the sentence under § 5-4-103, the appellate court had no reason to reverse the fine portion of the sentence. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992).

Request for leniency of sentence under subsection (e) was not considered where defendant did not show that the outcome of his trial would have been different had his counsel requested consideration of the sentences received by the others who were involved in the crime of which he was convicted. Riggins v. State, 329 Ark. 171, 946 S.W.2d 691 (1997).

Trial court's power under subsection (e) of this section to reduce the punishment assessed by the jury is harmonious with, and complementary to, the jury's power to fix punishment found in §§ 5-4-103 and 16-97-101. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002).

Trial court did not abuse its discretion in denying defendant's post-trial request for a sentence reduction pursuant to subsection (e) of this section because defendant's 20-year sentence for second-degree sexual assault, in violation of § 5-14-125, fell within the statutory range. Brown v. State, 2010 Ark. 420, 378 S.W.3d 66 (2010).

Motion to Reduce.

Denial of inmate's petition for postconviction relief was proper because he failed to prove that he received ineffective assistance of counsel. In part, the inmate's argument that the jury's verdict imposing the maximum sentences to run consecutively was a result of passion and prejudice was not persuasive; considering the court's ability to sua sponte reduce the sentence, the trial court did not clearly err in finding that a motion to reduce the sentence under subsection (e) of this section would have been denied. Hoyle v. State, 2011 Ark. 321, 388 S.W.3d 901 (2011).

Parole.

Neither the trial court nor counsel should comment on parole because the jury would be inclined to impose excessive punishment in order to compensate for early release. Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993).

Cited: Martin v. State, 162 Ark. 282, 257 S.W. 752 (1924); McGee v. State, 215 Ark. 795, 223 S.W.2d 603 (1949); Newsom v. State, 232 Ark. 405, 337 S.W.2d 866 (1960); Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968); Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969); Tabor v. State, 246 Ark. 983, 440 S.W.2d 536 (1969); Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977); Rogers v. Britton, 466 F. Supp. 397 (E.D. Ark. 1979); Franz v. Lockhart, 700 F. Supp. 1005 (E.D. Ark. 1988); Walker v. State, 309 Ark. 23, 827 S.W.2d 637 (1992); Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003); Barritt v. State, 372 Ark. 395, 277 S.W.3d 211 (2008); Vance v. State, 2011 Ark. 243, 383 S.W.3d 325 (2011).