Ark. Code Ann. § 16-90-120 (2026)

Research References

Ark. L. Rev.

Notes, Shockley v. State: The Constitutionality of the Arkansas Habitual Offender Determination Procedure, 39 Ark. L. Rev. 553.

Case Notes

Constitutionality.

Use of the words “sentencing court” in this section was intended by the legislature to refer either to the judge or the jury, and the factual issue of the use of a firearm is to be determined by the jury unless a jury has been waived; therefore, the statute does not contravene the constitutional right to a trial by jury. Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973).

There was no justification in the argument that this section is vague and indefinite where the argument was unsupported by citation of precedent and defendants did not more than give citations to court decisions which were alleged as illustrative of the confusion. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).

Legislature held justified in specifying an additional penalty for those felonies committed by means of firearms; thus, this section was not an unconstitutional denial of equal protection of law even though a similar enhanced punishment was not imposed for commission of homicide by other means. Rawls v. State, 260 Ark. 430, 541 S.W.2d 298 (1976).

Defendant, who was charged with first-degree murder and convicted by the jury of the lesser-included offense of manslaughter, was sentenced to 10 years for the manslaughter conviction and his sentence enhanced by 15 years under this section. Even if appellant had preserved for review the argument that the firearm enhancement violated double jeopardy, the argument failed on the merits as the enhancement was not a substantive criminal offense, but a sentencing enhancement specifically intended to provide additional punishment for the use of a firearm during the commission of the underlying felony itself. Campbell v. State, 2017 Ark. App. 340, 525 S.W.3d 465 (2017).

In General.

If a deadly weapon used by a felon is a firearm, the sentencing court has the discretion pursuant to the statute to impose a period of confinement not to exceed 15 years, which period would be in addition to any fine or penalty authorized as punishment for the felony itself. Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000).

Where appellant was convicted of two hotel robberies, the trial court properly convicted him of aggravated robbery, rape, two counts of being a felon in possession of a firearm, and being a habitual offender where the state alleged that appellant had prior felony convictions. Townsend v. State, 355 Ark. 248, 134 S.W.3d 545 (2003).

Plain language of the firearm-enhancement statute shows that the legislature intended for it to apply to any offense, in addition to any fine or penalty provided by law as punishment for the felony itself. McKeever v. State, 367 Ark. 374, 240 S.W.3d 583 (2006).

Additional Confinement.

Addition of extra sentence by the trial court under this section violated the defendant's constitutional rights in that no specific finding was ever made by the jury to the effect that he had committed the crime while armed with a pistol. Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970).

Additional confinement held improper. Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974).

Finding that defendant was guilty of second-degree murder and that her sentence should be lengthened by five years under this section did not constitute double jeopardy. Rawls v. State, 260 Ark. 430, 541 S.W.2d 298 (1976).

Firearm enhancements must always run after the basic sentences and cannot be affected by the concurrent running of the original sentences. Welch v. State, 269 Ark. 208, 599 S.W.2d 717, cert. denied, 449 U.S. 996, 101 S. Ct. 535, 66 L. Ed. 2d 294 (1980).

Additional confinement held proper. Haynie v. State, 257 Ark. 542, 518 S.W.2d 492 (1975); Ferguson v. State, 257 Ark. 1036, 521 S.W.2d 546 (1975); Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Holloway v. Lockhart, 754 F.2d 252 (8th Cir.), cert. denied, 474 U.S. 836, 106 S. Ct. 111, 88 L. Ed. 2d 90 (1985).

The trial court erred in enhancing the defendant's sentence because the court was not the “sentencing court” where the defendant was found guilty and sentenced by a jury. Watson v. State, 71 Ark. App. 52, 26 S.W.3d 588 (2000).

Defendant's convictions for aggravated assault in violation of § 5-13-204(a) and use of a firearm in commission of a felony did not subject defendant to double jeopardy as the conviction under this section was used to enhance defendant's sentence. Davis v. State, 93 Ark. App. 443, 220 S.W.3d 248 (2005).

In a case involving terroristic acts under § 5-13-310(a)(1) where three shots were fired into an automobile, because each terroristic act was a separate offense that could have been committed with or without a firearm, each crime was subject to a firearm enhancement under this section. McKeever v. State, 367 Ark. 374, 240 S.W.2d 583 (2006).

Amendment.

In a murder case, the trial court did not err in allowing the state to amend the information on the morning of trial to include a felony-firearm enhancement. Because the charge defendant was tried for was contained in the original information, the reviewing court failed to see how defendant was unfairly surprised or otherwise prejudiced by the amended information. Plessy v. State, 2012 Ark. App. 74, 388 S.W.3d 509 (2012).

Appeal.

Where the record revealed that no objection to the information charging the defendant with the use of the firearms in the commission of a felony or to the manner of the submission of the issue to the jury was made, such issues could not be raised for the first time on appeal. Haynie v. State, 257 Ark. 542, 518 S.W.2d 492 (1975).

Defendants' argument that the firearm-enhancement statute was a lesser-included offense of any crime for which use of a firearm was an element, thereby making their sentences for the underlying felonies and the firearm enhancements illegal, was unpreserved for review because it was not properly framed as a challenge to an illegal sentence; the argument was a double-jeopardy challenge, and it had already been directly addressed and rejected. Anderson v. State, 2017 Ark. App. 300 (2017).

Construction with Other Laws.

Section 5-4-103 did not repeal this section; the statutes speak to two different issues and can be read in harmony. Watson v. State, 71 Ark. App. 52, 26 S.W.3d 588 (2000).

Upon conviction for aggravated robbery and misdemeanor theft of property, defendant's enhanced sentence as a habitual offender with two prior felony convictions was affirmed as there was no conflict between § 5-4-104(a) and subsections (a) and (b) of this section; § 5-4-104(a) refers only to the initial sentence and subsections (a) and (b) refer only to a sentence enhancement that could be added to the initial sentence. Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005).

This section, the firearm enhancement statute, was not repealed by implication when the Arkansas Criminal Code became effective in 1976; former § 5-4-505 could be read in harmony with this section, and the general assembly's amendment of this section was inconsistent with the conclusion it had been repealed by implication. Sesley v. State, 2011 Ark. 104, 380 S.W.3d 390 (2011).

Two fifteen-year sentences imposed by the jury under the firearm enhancement statute were not illegal, because § 5-4-104 and this section could be read in a harmonious manner, and without statutory amendments, the appellate courts' interpretations of the statutes remained the law. Smith v. State, 2013 Ark. 364 (2013).

Evidence Sufficient.

In a carjacking case where defendant was convicted of aggravated robbery and theft, and his sentence enhanced under this section, the evidence was not insufficient based on a lack of proof there was a gun because the victim testified that, after she did not immediately move away from her car as directed, the perpetrator raised his shirt to display the handle of a gun that was stuck in his waistband; a law-enforcement officer confirmed that the victim reported that the perpetrator had a semiautomatic weapon in his waistband; and the jury obviously found there to be credible evidence that a firearm was used by the perpetrator to effect the robbery and theft. Davis v. State, 2016 Ark. App. 274, 493 S.W.3d 339 (2016).

Circuit court properly sentenced defendant for capital murder, unlawful discharge of a firearm from a vehicle, and terroristic act, and his sentence was properly enhanced for employing a firearm in the commission of a felony; although the jury did not complete the verdict form concerning utilizing a firearm in the commission of a felony, the findings of guilt sufficiently triggered the sentence enhancement. Martinez v. State, 2019 Ark. 85, 569 S.W.3d 333 (2019).

Firearm Enhancement Statute Not Repealed by Implication.

Fifteen years' imprisonment pursuant to a firearm enhancement was proper because this section was not repealed by implication when the Arkansas Criminal Code became effective; statutes were not in irreconcilable conflict, and the general assembly had validated this section's continued existence by amending it. Neely v. State, 2010 Ark. 452, 370 S.W.3d 820 (2010).

Where defendant was found guilty of aggravated robbery and theft of property, his sentence was enhanced by seven years pursuant to this section for employing a firearm in the commission of a felony; the appellate court rejected the argument that the firearm enhancement was repealed on January 1, 1976, when the Arkansas Criminal Code took effect. The firearm enhancement did not violate the plain language of § 5-4-104(a), because § 5-4-104(a) and subsections (a) and (b) of this section can be read harmoniously to mean that subsections (a) and (b) are only a sentence enhancement, while the Arkansas Criminal Code provides the minimum sentences to be imposed for each specific offense. Williams v. State, 2013 Ark. App. 179 (2013).

Indictment.

Court's failure to separately indicate the period of confinement for the felony conviction and the term of confinement under this section did not constitute reversible error. Norton v. State, 260 Ark. 412, 540 S.W.2d 588 (1976).

Presumption of prosecutorial vindictiveness did not arise when the State filed an amended information adding a firearm enhancement under this section after defendant's first trial for aggravated robbery and theft ended in a mistrial, because the deputy prosecutors provided an objective, on-the-record explanation with their testimony that they initially decided not to amend the information in the interest of judicial economy to avoid a continuance. After the first trial ended in a hung jury, the threat of delay was no longer a factor. Williams v. State, 2013 Ark. App. 179 (2013).

Instructions.

Circuit court did not abuse its discretion in denying defendant's second-degree battery instruction because the offense charged was first-degree battery pursuant to § 5-13-201(a)(3), and the jury was not required to find that defendant employed a firearm in order to convict him of that offense, nor was the jury required to apply the firearm enhancement if it convicted defendant of first-degree battery; the firearm enhancement was not an element of the first-degree-battery offense but was an additional sentence authorized by statute if defendant was convicted of first-degree battery, and the jury determined that defendant employed a firearm during commission of that offense as prohibited by this section. Reed v. State, 2011 Ark. App. 352, 383 S.W.3d 881 (2011).

In a carjacking case where defendant was convicted of aggravated robbery and theft, and his sentence enhanced under this section, the trial court did not abuse its discretion when it instructed the jury to consider whether to enhance defendant's sentence based on the use of a firearm because there was evidence of the use of a firearm; the judge gave the jury the model jury instruction, which was a proper statement of the law; and defendant's challenge to the veracity of the victim's testimony that the perpetrator showed her the handle of a gun in an effort to have her move away from her car was a credibility determination for the jury, not the appellate court. Davis v. State, 2016 Ark. App. 274, 493 S.W.3d 339 (2016).

Sentencing.

After defendant was convicted of three counts of committing a terroristic act, the trial court did not err in imposing multiple firearm enhancements because defendant committed three separate criminal offenses, and each offense was committed with a firearm. McKeever v. State, 367 Ark. 374, 240 S.W.3d 583 (2006).

Defendant's conviction for murder in the second degree, with a firearm enhancement, was proper because defendant acted knowingly to cause the victim's death under circumstances manifesting extreme indifference to the value of human life. The issues involved credibility and it was presumed that a person intended the natural and probable consequences of his or her acts; defendant shot her husband in the wrist with a handgun, he bled to death as a result of the wound, and additional evidence indicated that the fatal wound was defensive in nature. Johnson v. State, 2010 Ark. App. 153, 375 S.W.3d 12 (2010).

Defendant's sentence enhancement pursuant to subsection (a) of this section, which allowed discretionary enhancement for using a firearm as a means of committing a felony, was proper because defendant's accomplice liability for the underlying offense of murder, that was committed by use of a firearm, was sufficient for the statutory enhancement to apply. Mhoon v. State, 2010 Ark. App. 183 (2010).

Summary denial of an inmate's Ark. R. Crim. P. 37.1 postconviction relief petition was reversed because the order did not provide the requisite findings and conclusions, and the record did not clearly support affirmation; because no hearing was held, the trial court had an obligation to provide written findings that showed that the inmate was entitled to no relief. It was not conclusive from the petition or the record that relief was not warranted on the inmate's claims concerning illegal sentencing as there was no evidence that counsel agreed to allow the court to sentence on a gun enhancement charge. Davenport v. State, 2011 Ark. 105 (2011).

Where defendant was convicted of multiple offenses and sentenced to 240 months for committing a terroristic act and 192 months for domestic battery, the enhancement of his sentence on both charges by 144 months pursuant to this section did not result in his sentence being enhanced twice for using a deadly weapon because the use of a firearm was not an element the prosecution had to prove to obtain his convictions. King v. State, 2012 Ark. App. 94 (2012).

Because defendant's sentence for felon-in-possession/using firearm to commit another felony under § 5-73-103(c)(1)(B) was not enhanced by the statute defining the crime, the trial court did not err by applying the enhancement in subsection (a) of this section for using a firearm to commit a felony. Stubblefield v. State, 2013 Ark. App. 734 (2013).

Firearm enhancement of defendant's conviction for possessing a defaced firearm under § 5-73-107 was not an illegal sentence, even though the underlying conviction necessarily involved the possession of a firearm. Hinton v. State, 2015 Ark. 479, 477 S.W.3d 517 (2015).

In the context of a sentencing enhancement under subsection (a) of this section, there was no merit in defendant's argument that he did not use a firearm to kill a victim based on the fact that he was convicted of the offense of first-degree murder, and the victim was killed by multiple gunshot wounds. Fowler v. State, 2015 Ark. App. 579, 474 S.W.3d 120 (2015).

Where defendant was found guilty of first-degree murder and 29 counts of terroristic acts and the jury found beyond a reasonable doubt in the guilt phase that defendant or an accomplice employed a firearm as a means of committing first-degree murder but in the sentencing phase sentenced defendant to firearm enhancements in connection with the counts for terroristic acts, the 29 one-year sentences imposed as firearm enhancements were reversed because the jury did not find beyond a reasonable doubt that defendant employed a firearm as a means of committing terroristic acts. Ellis v. State, 2019 Ark. 286, 585 S.W.3d 661 (2019).

Cited: Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973); Lisenby v. State, 260 Ark. 585, 543 S.W.2d 30 (1976); Walters v. State, 267 Ark. 155, 621 S.W.2d 468 (1979); Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995); Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918 (2010); Liggins v. State, 2016 Ark. 432, 505 S.W.3d 191 (2016).