Ark. Code Ann. § 16-90-201 (2020)

Research References

ALR.

Pardoned or expunged conviction as “prior offense” under state statute or regulation enhancing punishment for subsequent conviction. 97 A.L.R.5th 293.

Ark. L. Rev.

Note, Conley v. State: Mitigation Before Guilt, 45 Ark. L. Rev. 995.

Case Notes

Constitutionality.

Enhanced sentence held not to constitute cruel and unusual punishment. Wilson v. State, 251 Ark. 900, 475 S.W.2d 543 (1972).

The habitual criminal act is not unconstitutional on the grounds of cruel or unusual punishment. Thompson v. State, 252 Ark. 1, 477 S.W.2d 469 (1972).

Construction.

The Habitual Criminal Act is not couched in language indicative of an intention that its invocation by prosecuting officers be discretionary any more than the statutes fixing punishment for the crimes themselves. Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971).

This section is best referred to as a sentencing enhancement provision, thus, if conviction on the “current offense” falls, then conviction as an habitual offender enhancing the sentence must fall with it. Ellingburg v. Lockhart, 397 F. Supp. 771 (E.D. Ark. 1975).

Legislature intended the word “conviction” as used in the statute to mean the establishment of guilt prior to and independently of judgment and sentence. Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976).

Circuit court erred in sentencing defendant under this section because the statute was repealed by implication with the enactment of § 5-4-501, and the effect of sentencing defendant under this section was prejudicial since there was the possibility that the jury would have returned a sentence less than the minimum set forth in this section; because sentencing had to be determined by the law in effect at the time of the commission of a crime, defendant was entitled to a jury instruction in accordance with the Criminal Code's habitual-offender statute, § 5-4-501. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203 (2011).

General Assembly clearly took up the subject matter of the enhanced sentencing of habitual offenders anew in the more current statute, § 5-4-501, and the conflict between this section and § 5-4-501 is irreconcilable, resulting in a repeal by implication of this section; a plain reading of § 5-4-501 and this section makes clear that § 5-4-501 is the more comprehensive statute, covering the same subject matter as this section as well as including additional provisions to provide for the sentencing of habitual offenders who are convicted of serious and violent felonies, and it is further evident that the two statutes cannot be read together harmoniously as the sentencing ranges prescribed by each statute conflict. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203 (2011).

Applicability.

Although the Habitual Criminal Act encompasses prior convictions in the federal courts and in other state courts, the statute is applicable only when both the prior and present convictions are felonies and does not convert a misdemeanor into a felony. McIlwain v. State, 226 Ark. 818, 294 S.W.2d 350 (1956).

Under the Habitual Criminal Act, prior convictions may be the basis for increasing the punishment for the offense on trial; however, in the absence of a conviction, the jury ought not to consider some other offense as a reason for increased punishment. Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963).

Burden of Proof.

State had the burden of establishing the number and validity of defendant's prior convictions for purposes of sentencing under the Arkansas Habitual Criminal Act. Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979).

Failure to Invoke Act.

Where prosecuting attorneys in one district failed to invoke the habitual criminal act, subsequent applications of the act were not denials of equal protection or due process. Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971).

Prior Convictions.

Where accused charged with a second or subsequent offense confesses the fact of the prior conviction, it is unnecessary for the state to prove such fact. Jackson v. State, 226 Ark. 731, 293 S.W.2d 699 (1956).

Court's refusal to strike the habitual criminal charge was not error since it had a right and duty to give the state the opportunity to prove a former conviction. Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 (1959).

It is error to use pardoned conviction to enhance defendant's sentence. Duncan v. State, 254 Ark. 449, 494 S.W.2d 127 (1973).

As to stipulation to prior convictions, see: Cox v. State, 257 Ark. 35, 513 S.W.2d 798 (1974); Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979); Cox v. Hutto, 619 F.2d 731 (8th Cir. 1980).

An adjudication of juvenile delinquency results in the determination of a status and not conviction for a crime. Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976).

—Assistance of Counsel.

Allowing jury to consider, as evidence of prior convictions, two documents which did not reflect whether the appellant was represented by or had validly waived counsel was an error which required reduction of the sentence. McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974).

Defendant's contention that he was not afforded counsel at the time he entered guilty pleas in the state courts was insufficient to rebut the statement in the state records that each time defendant entered guilty pleas he appeared in person and with his counsel. Clem v. Lockhart, 525 F.2d 1192 (8th Cir. 1975).

Evidence of a defendant's prior convictions for purposes of applying the habitual criminal act must establish that the defendant either received assistance from an attorney or validly waived counsel at the time of each prior conviction. Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979).

—Evidence.

Evidence of prior convictions sufficient to convict defendant under this section. Flurry v. State, 248 Ark. 722, 453 S.W.2d 402 (1970); Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972); Clem v. State, 254 Ark. 580, 495 S.W.2d 517 (1973).

As to admissibility of certain prior convictions, see: Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972); Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973); Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976).

Where an infirm document of a previous conviction is admitted as evidence in a proceeding under this section, the Arkansas Supreme Court will reduce the defendant's sentence. McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974).

Where it could not be determined what part inadmissible conviction played in the determination of defendant's sentence under the habitual criminal act, defendant's sentence, upon showing of three admissible convictions, was reduced to minimum terms. Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976).

A docket sheet may not be used to establish a prior conviction for purposes of sentencing under the habitual criminal statute. Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979).

Procedure Generally.

As to submission of the issue of punishment to the jury, see: Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965); Cummings v. State, 239 Ark. 1027, 396 S.W.2d 298 (1965); Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971); Backus v. State, 253 Ark. 60, 484 S.W.2d 515 (1972).

Error of the trial court in permitting the state to show prior convictions of an alleged habitual criminal in its trial of the current charge cannot be raised in post-conviction procedure after the case has been finally adjudicated and the appellate process completed. Rowe v. State, 243 Ark. 375, 419 S.W.2d 806 (1967).

—Indictment or Information.

Indictment or information held sufficient to allege prior convictions. Jackson v. State, 226 Ark. 731, 293 S.W.2d 699 (1956).

That part of the indictment or information charging a previous conviction should not be read to the jury during the trial of the principal offense charged. Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965); Cummings v. State, 239 Ark. 1027, 396 S.W.2d 298 (1965); Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966).

Information which did not designate defendant's four previous convictions, but did state that the charges were filed under the habitual criminal statute, was not fatally defective; any lack of specificity was waived by defendant's voluntary plea of guilty. Wilson v. State, 251 Ark. 900, 475 S.W.2d 543 (1972).

—Pleading.

If the defendant pleads guilty to the previous conviction charge, the matter can be handled by the court in charging the jury in its instruction as to the minimum penalty. Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965); Cummings v. State, 239 Ark. 1027, 396 S.W.2d 298 (1965).

Evidence was sufficient to show defendant's guilty plea was entered with sufficient understanding of its effect, even though defendant alleged that the effect of the habitual criminal statute was not explained to him. Wilson v. State, 251 Ark. 900, 475 S.W.2d 543 (1972).

While the applicability of the habitual criminal act is “charged” in the sense that the trial court is notified of it in the information filed against the accused, no plea is required. Atkins v. State, 287 Ark. 445, 701 S.W.2d 109 (1985).

Cited: Walker v. State, 240 Ark. 441, 399 S.W.2d 672 (1966); Bradshaw v. State, 250 Ark. 135, 464 S.W.2d 614 (1971); Brown v. State, 252 Ark. 846, 481 S.W.2d 366 (1972); Polk v. State, 252 Ark. 320, 478 S.W.2d 738 (1972); Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 (1973); Cox v. State, 255 Ark. 204, 499 S.W.2d 630 (1973); Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973); Bumgarner v. Lockhart, 361 F. Supp. 829 (E.D. Ark. 1973); Moore v. State, 256 Ark. 385, 507 S.W.2d 711 (1974); Alexander v. State, 256 Ark. 700, 509 S.W.2d 816 (1974); Yarbrough v. State, 257 Ark. 732, 520 S.W.2d 227 (1975); Johnson v. State, 259 Ark. 220, 532 S.W.2d 1 (1976); Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977); Young v. Mabry, 471 F. Supp. 553 (E.D. Ark. 1978); Young v. Mabry, 596 F.2d 339 (8th Cir. 1979); Blackmon v. State, 272 Ark. 157, 612 S.W.2d 319 (1981); Christian v. Housewright, 721 F.2d 240 (8th Cir. 1983); Woods v. State, 302 Ark. 512, 790 S.W.2d 892 (1990).