Ark. Code Ann. » Title 16 Chapter 90
Arkansas Code Annotated

Ark. Code Ann. § 16-90-804 (2026)

Departures from the voluntary presumptive sentence range

✓ current as of May 2026
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    1. At a bench trial, a court may depart from the voluntary presumptive sentence range determined under § 16-90-803 in reliance on one (1) or more aggravating factors by providing a justification in the record of:
      1. A listing of the charges and sentencing enhancements against the offender as set out in the first charging instrument as well as any additional charges or sentence enhancements subsequently added in the case, if any; and
      2. A thorough recitation of the facts underlying the departure from the voluntary presumptive sentence range under § 16-90-803.
      1. The justification regarding an aggravating factor shall be entered into the sentencing order.
      2. The sentencing order shall also reflect whether the sentence is the result of an original charge or whether an original charge was nolle prosequi.
      1. When sentencing is done by the court following a trial before the court, either party or both parties may present evidence to justify a departure from the voluntary presumptive sentence range determined under § 16-90-803.
      2. The court may allow argument either during the sentencing phase of a trial or at a separate hearing on the matter of departing from the voluntary presumptive sentence range determined under § 16-90-803 if the court finds that argument would be helpful.
        1. When sentencing is done by the court following the entry of a plea of guilty, nolo contendere, or a negotiated plea of guilty, the court shall enter the sentence on the record.
        2. After the court enters the sentence on the record under subdivision (b)(1)(C)(i) of this section, the prosecuting attorney shall provide in writing the credible reasons for a departure from the voluntary presumptive sentence range, if a departure from the voluntary presumptive sentence range is applicable.
      1. If both parties agree on a recommended sentence, the court may choose to accept or reject the agreement based upon the facts of the case and whether the facts support the voluntary presumptive sentence range determined under § 16-90-803 or a departure different from any recommendation.
        1. If there is an agreed departure from the voluntary presumptive sentence range under § 16-90-803, the parties shall supply written reasons to the court to attach to the sentencing order and to report to the Arkansas Sentencing Commission.
        2. The written reasons required under subdivision (b)(2)(B)(i) of this section shall include:
          1. A listing of the charges and sentencing enhancements against the offender as they were set out in the first charging instrument as well as any additional charges or sentence enhancements subsequently added in the case, if any; and
          2. A thorough recitation of the facts underlying the departure from the presumptive sentence range under § 16-90-803. (C) If the court rejects the agreement under subdivision (b)(2)(A) of this section, the offender shall be allowed to withdraw his or her plea.
          3. The following is a nonexclusive list of mitigating factors that may be considered as a reason or reasons for departure from the voluntary presumptive sentence range under § 16-90-803:
            1. While falling short of a defense, the victim played an aggressive role in the incident or provoked or willingly participated in the incident;
            2. The offender played a minor or passive role in the commission of the current offense;
            3. Before detection, the offender compensated or made a good faith effort to compensate the victim for any damage or injury sustained by the victim;
            4. The current offense was principally accomplished by another person, and the offender manifested extreme caution or sincere concern for the safety or well-being of the victim;
            5. The offender or the offender's children suffered a continuing pattern of physical or sexual abuse by the victim of the current offense, and the current offense is a response to the physical or sexual abuse;
            6. The inclusion of multiple offenses in calculating the voluntary presumptive sentence range under § 16-90-803 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter;
            7. If the current offense is a sexual offense, before detection in the sexual offense, the offender has voluntarily admitted the nature and extent of the sexual offense and has sought and participated in professional treatment or counseling for the sexual offense;
            8. Upon motion of the state stating that the offender has made a good faith effort to provide substantial assistance to the investigation or prosecution of another person who has committed an offense, the circumstances listed below may be weighed as mitigating factors with respect to the offender's offense:
              1. The timeliness of the offender's assistance;
              2. The nature and extent of the offender's assistance; and
              3. The truthfulness, completeness, and demonstrable reliability of any information or testimony provided by the offender; and
              1. Any other compelling reason.
              2. If any other compelling reason is used as a mitigating factor under this subsection, additional details regarding the negotiated plea, if applicable, and why the sentence was a downward departure from the voluntary presumptive sentence shall be included.
          4. The following is a nonexclusive list of aggravating factors that may be considered as a reason or reasons for departure from the voluntary presumptive sentence range determined under § 16-90-803:
            1. The offender's conduct during the commission of the current offense manifested deliberate cruelty to the victim exhibited by degrading, gratuitous, vicious, torturous, and demeaning physical or verbal abuse, unusual pain, or violence in excess of that necessary to accomplish the criminal purpose;
            2. The offender knew or should have known that the victim was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health;
            3. The current offense was a major economic offense or series of offenses, as identified by a consideration of any of the following factors:
              1. The current offense involved multiple victims or multiple incidents per victim;
              2. The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;
              3. The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;
              4. (i) The offender used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
              5. The offender has been involved in other conduct similar to the current offense as evidenced by the findings of civil or administrative law proceedings or the imposition of professional sanctions;
              1. The current offense was a major controlled substance offense, identified as an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual controlled substance offense.
              2. The presence of two (2) or more of the following circumstances is an aggravating factor with respect to the current offense:
        3. The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement;
        4. The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;
        5. The offender used his or her position or status to facilitate the commission of the current offense, including without limitation positions of trust, confidence, or fiduciary relationships, such as a pharmacist, physician, or other medical professional; or
        6. The offender has received substantial income or resources from his or her involvement in trafficking a controlled substance;

(ii) The factor described under subdivision (d)(3)(D)(i) of this section does not apply if it constitutes an element of the current offense; or

(i) The current offense involved at least three (3) separate transactions in which controlled substances were sold, transferred, or possessed with a purpose to sell or transfer the controlled substance;

(ii) The current offense involved an attempted or actual sale or transfer of a controlled substance in an amount substantially larger than the statutory minimum that defines the current offense;

(5)(A) The current offense is a felony and the offender employed a firearm in the course of or in furtherance of the felony or in immediate flight from the felony.

(B) The factor described under subdivision (d)(5)(A) of this section does not apply to an offender convicted of a felony, an element of which is:

(i) Employing or using, or threatening or attempting to employ or use, a deadly weapon;

(ii) Being armed with a deadly weapon;

(iii) Possessing a deadly weapon;

(iv) Furnishing a deadly weapon; or

(v) Carrying a deadly weapon;

(6) The current offense was a sexual offense and was part of a pattern of criminal behavior with the same or different victims under eighteen (18) years of age manifested by multiple incidents over a prolonged period of time;

(7) The inclusion of multiple offenses in calculating the voluntary presumptive sentence range under § 16-90-803 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter;

(8) The current offense was committed in a manner that exposed risk of injury to persons other than the victim or victims, including without limitation shooting a firearm into a crowd of people;

(9) The current offense was a violent or sexual offense committed in the victim's zone of privacy, including without limitation the victim's home or the curtilage of the victim's home;

(10) The offender attempted to cover or conceal the current offense by intimidation of witnesses, destruction or tampering with evidence, or purposely misleading authorities;

(11) The current offense was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;

(12) If the current offense is related to a vehicular homicide, the offender did not have the minimum insurance required by law; and

(13)(A) Any other compelling reason.

(B) If any other compelling reason is used as an aggravating factor under this subsection, additional details regarding the negotiated plea, if applicable, and why the sentence was an upward departure from the voluntary presumptive sentence shall be included.

(e) This section shall not apply when a jury has recommended a sentence to the trial court.

History. Acts 1993, No. 532, § 3; 1993, No. 550, § 3; 1995, No. 1170, §§ 8, 9; 2005, No. 186, § 1; 2017, No. 423, § 15.

Amendments. The 2005 amendment rewrote (a); inserted “or she” in present (b)(1)(B); deleted former (c); redesignated former (d) and (e) as present (c) and (d); substituted “considered” for “used” in present (c); and added present (e).

The 2017 amendment substituted “voluntary presumptive sentencing range” for “standards” in the section heading; and rewrote the section.

Effective Dates. Acts 2017, No. 423, § 37: “(a) Sections 16 through 23 of this act are effective on and after October 1, 2017. (b) Section 15 of this act is effective on and after January 1, 2018.”

Research References

ALR.

Downward departure under state sentencing guidelines based on extraordinary family circumstances. 106 A.L.R.5th 377.

Construction and Application of United States Sentencing Guideline § 2A2.1(b)(1), 18 U.S.C., Providing Enhancement for Attempted Murder or Assault with Intent to Commit Murder Dependent Upon Nature or Degree of Injury. 30 A.L.R. Fed. 2d 385.

Construction and Application of “Official Victim” Sentencing Enhancement of U.S.S.G. § 3A1.2(c) Concerning Law Enforcement Officers and Prison Officials. 32 A.L.R. Fed. 2d 371.

Construction and Application of U.S.S.G. § 3B1.1(s) Providing Sentencing Enhancement for Organizer or Leader of Criminal Activity — Fraud Offenses. 32 A.L.R. Fed. 2d 445.

Downward Adjustment for Acceptance of Responsibility Under U.S.S.G. § 3E1.1, 18 U.S.C. — Fraud Offenses. 33 A.L.R. Fed. 2d 477.

Construction and Application of U.S.S.G. § 5H1.3, Concerning Mental and Emotional Conditions as Ground for Sentencing Departure. 34 A.L.R. Fed. 2d 457.

Construction and Application of U.S.S.G. § 3B1.1(b) Providing Sentencing Enhancement For Manager or Supervisor of Criminal Activity — Drug Offenses — Cocaine. 35 A.L.R. Fed. 2d 467.

Validity, Construction, and Application of U.S.S.G. § 5K2.8, Providing for Upward Sentence Departure for Extreme Conduct. 36 A.L.R. Fed. 2d 95.

Construction and Application of U.S.S.G. § 2X1.1, Providing Sentencing Guideline for Conspiracy Not Covered by Specific Offense Guideline. 37 A.L.R. Fed. 2d 449.

Construction and Application of U.S.S.G., § 3B1.1(a), 18 U.S.C., Providing Sentencing Enhancement for Organizer or Leader of Criminal Activity — Drug Offenses. 43 A.L.R. Fed. 2d 365.

Ark. L. Rev.

Recent Developments, Sentencing, 57 Ark. L. Rev. 697.

Note, Hurricane Blakely and the Calm After the Storm Found in Booker, 58 Ark. L. Rev. 449.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

Annual Survey of Case Law: Criminal Law, 29 U. Ark. Little Rock L. Rev. 849.

Case Notes

Construction.

Defendant was properly given non-presumptive sentences for his convictions for second degree domestic battery and third degree domestic battery because the trial court was authorized to depart from the presumptive sentence pursuant to its written findings as to the severity of the victim's injuries; further, the sentencing procedure did not violate defendant's Sixth Amendment rights because a jury did not find the facts on which his non-presumptive sentence was based, the sentence was still within the statutory range, and defendant waived his right to a jury trial and consented to judicial sentencing. Brock v. State, 90 Ark. App. 164, 204 S.W.3d 562 (2005).

This section clearly indicates that the list of departure factors is not exclusive; therefore, evidence of subsequent drug manufacturing was admissible in the sentencing phase of a drug trial because it was relevant for departure purposes. Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005).

Compliance.

The General Assembly did not intend that the trial court necessarily write out the reasons for departure from the sentencing grid in longhand but only that the reasons be written; thus, where they were in writing, and the trial court circled the numbers of those aggravating circumstances that compromised its justifications, this procedure was appropriate and did not constitute error. Woods v. State, 323 Ark. 605, 916 S.W.2d 728 (1996).

Factors for Departure.

While “committing additional felonies while on probation” is not on the list of aggravating factors provided by the statute, it is an appropriate reason when the sentence follows a probation revocation proceeding and the preponderance of the evidence indicates that the defendant committed other felonies during his probation. Martin v. State, 337 Ark. 451, 989 S.W.2d 908 (1999).

Guilty Plea.

Issues such as the trial court's upward departure from the sentencing guidelines contained in this section and § 16-90-803 are not appealable after an Ark. R. Crim. P. 24.3(b) conditional guilty plea. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).

Statutory Minimum.

This section does not allow a judge to sentence a defendant to a fifty-four month sentence when the statutory minimum is ten years. Pickett v. State, 321 Ark. 224, 902 S.W.2d 208 (1995).

Upward Deviation Upheld.

Given the testimony against defendant, and because the presumptive sentencing standards are merely advisory, the circuit court did not abuse its discretion by departing from the presumptive sentence of 20 years' imprisonment and imposing 70 years' imprisonment on the continuing criminal enterprise conviction. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Cited: Cupit v. State, 324 Ark. 438, 920 S.W.2d 853 (1996); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997); Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997); Burton v. State, 367 Ark. 109, 238 S.W.3d 111 (2006); Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007).

Subchapter 9 — Expungement and Sealing of Criminal Records

16-90-901 — 16-90-906. [Repealed].

Publisher's Notes. These sections, concerning definition, effects of expungement, release of sealed records, the procedure for sealing of records, uniform petition and order to seal records, and when no guilty verdict rendered, were repealed by Acts 2013, No. 1460, § 7. The sections were derived from the following sources:

16-90-901. Acts 1995, No. 998, § 7; 1999, No. 1407, § 3; 2003, No. 1390, § 7; 2003, No. 1753, § 1; 2011, No. 570, § 80.

16-90-902. Acts 1995, No. 998, § 7.

16-90-903. Acts 1995, No. 998, § 7.

16-90-904. Acts 1995, No. 998, § 7; 2009, No. 477, § 1; 2011, No. 626, § 3; 2013, No. 282, § 10.

16-90-905. Acts 1995, No. 998, § 7; 2003, No. 839, § 1.

16-90-906. Acts 1997, No. 738, § 1.

For current law, see the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401 et seq.

Notes of Decisions
Cited in 30 cases (6 in the last 5 years), 1995–2024 · leading case: Williams v. State, 217 S.W.3d 817 (Ark. 2005).
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Williams v. State, 217 S.W.3d 817 (Ark. 2005). · cites it 20× “§ 5-4-505 was repealed and, Ark.Code Ann. § 16-90-804 (Supp.1993) was enacted.”
Blakely v. Washington, 542 U.S. 296 (2004). · cites it 2× “155 (2002); Ark. Code Ann. § 16-90-804 (2003 Supp.); Fla.”
Lance Mitchell Owens v. Dexter Payne, Dir., Arkansas Dep't of Corr., 2020 Ark. 413 (Ark. 2020). · cites it 10× “Owens argues that the failure to attach to the judgment and commitment order Owens’s written reasons for the departure from the presumptive sentence rendered his sentence illegal pursuant to Arkansas Code Annotated section 16-90-804 (Supp. 1999).1 We affirm.”
Burton v. State, 238 S.W.3d 111 (Ark. 2006). · cites it 6× “Appellant first argues his trial counsel was ineffective in allowing him to be sentenced outside the presumptive sentence range, and then suggests that Ark. Code Ann. § 16-90-804 (Repl. 2006) is unconstitutional because it allows a lighter presumptive sentence when the defendant…”
Waller v. Kelley, 2016 Ark. 252 (Ark. 2016). · cites it 4× “Under these circumstances, the then-existing version of section 16-90-804(c) does not apply, and Waller has failed to demonstrate that the Department erred in computing his parole-eligibility date.”
Bell v. State, 266 S.W.3d 696 (Ark. 2007). · cites it 4× “” Ark. Code Ann. § 16-90-804 (c)(2)(F) (Repl.”
Henry Alexander Harmon v. State of Arkansas, 2023 Ark. 120 (Ark. 2023). · cites it 4× “We also reject Harmon’s claim that the sentence was an illegal departure from the presumptive sentence due to the circuit court’s failure to set forth the reasons for the departure as mandated by Arkansas Code Annotated section 16-90-804 (Repl.”
Antonio Smith v. State of Arkansas, 2021 Ark. 131 (Ark. 2021). · cites it 6× “We also reject Smith’s claim that the sentence was an illegal departure from the presumptive sentence due to the circuit court’s failure to set forth the reasons for the 3 departure as mandated by Arkansas Code Annotated section 16-90-804 (Repl.”
Hutcherson v. State, 47 S.W.3d 267 (Ark. Ct. App. 2001). · cites it 4× “§ 16-90-803 ; subsection (a)(2)(A) of that section clearly provides trial judges with the authority to depart from the presumptive sentence pursuant to Ark.Code Ann. § 16-90-804 (Supp.1999). Furthermore, our supreme court held in Pickett v.”
Brown v. State, 155 S.W.3d 22 (Ark. Ct. App. 2004). · cites it 3× “” Ark. Code Ann. § 16-90-804 (c)(1) (Supp. 2001) (emphasis added).”
Henderson v. State, 910 S.W.2d 656 (Ark. 1995). · cites it 4× “Ark. Code Ann. § 16-90-803 (b)(3)(c) (Supp.”
Ladwig v. State, 943 S.W.2d 571 (Ark. 1997). · cites it 4× “Ladwig that he would depart upward from the presumptive sentence stated in the statutory sentencing guidelines, as permitted by Ark. Code Ann. § 16-90-804 (Supp. 1995), and stated as the justification, required by Ark.”
Show all 30 citing cases →
— Ark. Code Ann. § 16-90-804(3) — 1 case
Burton v. State, 238 S.W.3d 111 (Ark. 2006). “Appellant first argues his trial counsel was ineffective in allowing him to be sentenced outside the presumptive sentence range, and then suggests that Ark. Code Ann. § 16-90-804 (Repl. 2006) is unconstitutional because it allows a lighter presumptive sentence when the defendant…”
— Ark. Code Ann. § 16-90-804(3)(c)(1) — 1 case
Beyard v. State, 2017 Ark. 203 (Ark. 2017).
— Ark. Code Ann. § 16-90-804(a)(1) — 1 case
Samuel T. McKaig v. State of Arkansas, 2022 Ark. App. 303 (Ark. Ct. App. 2022).
— Ark. Code Ann. § 16-90-804(a)(3) — 2 cases
Lewis v. State, 272 S.W.3d 113 (Ark. Ct. App. 2008).
Woods v. State, 916 S.W.2d 728 (Ark. 1996).
— Ark. Code Ann. § 16-90-804(b)(2)(B) — 1 case
Curtis Carnley v. State of Arkansas, 2024 Ark. App. 262 (Ark. Ct. App. 2024).
— Ark. Code Ann. § 16-90-804(b)(2)(C) — 1 case
Burton v. State, 238 S.W.3d 111 (Ark. 2006).
— Ark. Code Ann. § 16-90-804(c) — 1 case
Waller v. Kelley, 2016 Ark. 252 (Ark. 2016). “Under these circumstances, the then-existing version of section 16-90-804(c) does not apply, and Waller has failed to demonstrate that the Department erred in computing his parole-eligibility date.”
— Ark. Code Ann. § 16-90-804(c)(2)(E)(i) — 1 case
Williams v. State, 217 S.W.3d 817 (Ark. 2005). “§ 5-4-505 was repealed and, Ark.Code Ann. § 16-90-804 (Supp.1993) was enacted.”
— Ark. Code Ann. § 16-90-804(c)(2)(F) — 1 case
Bell v. State, 266 S.W.3d 696 (Ark. 2007). “” Ark. Code Ann. § 16-90-804 (c)(2)(F) (Repl.”
— Ark. Code Ann. § 16-90-804(d) — 1 case
Martin v. State, 989 S.W.2d 908 (Ark. 1999).
— Ark. Code Ann. § 16-90-804(d)(2) — 1 case
Woods v. State, 916 S.W.2d 728 (Ark. 1996).
— Ark. Code Ann. § 16-90-804(d)(2)(F) — 1 case
Atchison v. State, 5 S.W.3d 491 (Ark. Ct. App. 1999).
— Ark. Code Ann. § 16-90-804(d)(2)(J) — 2 cases
Henderson v. State, 910 S.W.2d 656 (Ark. 1995). “Ark. Code Ann. § 16-90-803 (b)(3)(c) (Supp.”
Grover Henderson v. Larry Norris, Dir., Arkansas Dep't of Corr., 258 F.3d 706 (8th Cir. 2001).
— Ark. Code Ann. § 16-90-804(e) — 1 case
Waller v. Kelley, 2016 Ark. 252 (Ark. 2016). “Under these circumstances, the then-existing version of section 16-90-804(c) does not apply, and Waller has failed to demonstrate that the Department erred in computing his parole-eligibility date.”
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