Any person who commits murder in the first degree, § 5-10-102, rape, § 5-14-103, or aggravated robbery, § 5-12-103, subsequent to March 24, 1983, and who has previously been found guilty of or pleaded guilty or nolo contendere to murder in the first degree, § 5-10-102, rape, § 5-14-103, or aggravated robbery, § 5-12-103, shall not be eligible for release on parole by the Parole Board.
Any person who commits a violent felony offense or any felony sex offense subsequent to August 13, 2001, and who has previously been found guilty of or pleaded guilty or nolo contendere to any violent felony offense or any felony sex offense shall not be eligible for release on parole by the board.
As used in this subsection, “a violent felony offense or any felony sex offense” means those offenses listed in § 5-4-501(d)(2).
Amendments.
The 2001 amendment rewrote this section.
Research References
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.
Case Notes
Ineffective Assistance of Counsel.
—Prejudice Not Shown.
Counsel's deficient performance in failing to correct instructional error that defendant was eligible for parole when he was not did not establish prejudice because the prosecutor emphasized the serious nature of the crime and the injury the petitioner inflicted on the mentally impaired victim and her family and the petitioner's seven prior felony convictions, and after deliberating less than 30 minutes, the jury imposed a sentence that would likely exceed his life span whether or not he would be granted parole.
Stewart v. Kelley, 890 F.3d 1124 (8th Cir. 2018).
Instructions.
Trial court's erroneous instruction during the sentencing phase that defendant would be eligible for parole after serving 70% of his sentence for first-degree murder did not provide any relief to defendant, because he failed to object to the error when it occurred and the error did not fit within the third
Wicks
exception concerning certain flagrant and highly prejudicial errors.
Muhammad v. State, 2019 Ark. App. 87, 572 S.W.3d 21 (2019).
Liberty Interest.
A liberty interest is not created by this section and this section does not limit the board's discretion to determine which eligible inmates shall be paroled. Parker v. Corrothers, 750 F.2d 653 (8th Cir. 1984), superseded by statute as stated in, Wadlington v. Kelley, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 161902 (E.D. Ark. Nov. 22, 2016), superseded by statute as stated in, Robinson v. Kelley, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 125167 (E.D. Ark. July 6, 2017).
Parole.
Department of Corrections calculated prisoner's parole time in accordance with the law in effect at the time his second offense was committed and, in doing so, it correctly determined he must serve the entire sentence he received for that offense; while such a determination may indirectly affect any parole eligibility he may have otherwise received for his other prior convictions, his parole status was determined by the correct parole statutes in effect at the time prisoner committed his numerous crimes. Woods v. Lockhart, 292 Ark. 37, 727 S.W.2d 849 (1987).
Defendant's sentence was not illegal under this section where he was sentenced as an habitual offender, and judicial precedent held that this section applied to a sentence for second-degree sexual assault.
Ward v. State, 2016 Ark. 8, 479 S.W.3d 9 (2016).
Harlon Finney v. Wendy Kelley, Dir., Arkansas Dep't of Corr., 2020 Ark. 145 (Ark. 2020). · cites it 11דThe purported basis of this conclusion is a completely different statute, Ark. Code Ann. § 16-93-609 (b)(1), which provides in relevant part as follows: Any person who commits a violent felony offense or any felony sex offense subsequent to August 13, 2001, and who has…”
Tyrun L. Jones v. Wendy Kelley, Dir., Arkansas Dep't of Corr., 2020 Ark. 290 (Ark. 2020). · cites it 6דIn Benson, the judgment and conviction order reflected that Benson had been convicted of prior felonies and was subject to the enhancement set forth in sections 16-93-609 and 5-4-501. However, this court found that that Benson’s enhanced sentences were based on prior felonies…”
Polivka v. State, 362 S.W.3d 918 (Ark. 2010). · cites it 4דAppellant alleged that he was denied effective assistance of counsel and due process, based on the following points of error: (1) the trial counsel failed to object to a jury instruction relating to parole eligibility, when Appellant would be ineligible for parole pursuant to…”
Ward v. State, 2016 Ark. 8 (Ark. 2016). · cites it 7דWith respect to the 180-month sentence, the trial court applied Arkansas Code Annotated section 16-93-609 (Supp. 2003), requiring that the sentence imposed was to be served without possibility of parole.”
Benson v. Kelley, 561 S.W.3d 327 (Ark. 2018). · cites it 26דArk. Code Ann. § 16-93-609 (a), (b)(1) (Repl.”
Bryant Smith v. State of Arkansas, 2025 Ark. 26 (Ark. 2025). · cites it 6דWhile Smith argues that his residential-burglary conviction would not be considered a prior violent offense under Ark. Code Ann. § 16-93-609 (Supp. 2023), this is an entirely separate statute that governs parole eligibility and is not determinative of the question raised here,…”
Tyrell A. Benson v. Dexter Payne, Dir., Arkansas Dep't of Corr., 2021 Ark. 18 (Ark. 2021). · cites it 6דIn 2018, this court issued a writ of habeas corpus with respect to Benson’s judgments in case numbers 60CR-02-1695 and 60CR-02-1978 because the sentencing orders applied Arkansas Code Annotated section 16-93-609 (Repl. 2016) to Benson’s sentences in those two cases, which…”
Pitts v. Hobbs, 2013 Ark. 457 (Ark. 2013). “Ark. Code Ann. § 16-93-609 (b). 3 Cite as 2013 Ark.”
Bryant Smith v. State of Arkansas, 2025 Ark. 26 (Ark. 2025). “While Smith argues that his residential-burglary conviction would not be considered a prior violent offense under Ark. Code Ann. § 16-93-609 (Supp. 2023), this is an entirely separate statute that governs parole eligibility and is not determinative of the question raised here,…”
Ward v. State, 2016 Ark. 8 (Ark. 2016). “With respect to the 180-month sentence, the trial court applied Arkansas Code Annotated section 16-93-609 (Supp. 2003), requiring that the sentence imposed was to be served without possibility of parole.”
Harlon Finney v. Wendy Kelley, Dir., Arkansas Dep't of Corr., 2020 Ark. 145 (Ark. 2020). “The purported basis of this conclusion is a completely different statute, Ark. Code Ann. § 16-93-609 (b)(1), which provides in relevant part as follows: Any person who commits a violent felony offense or any felony sex offense subsequent to August 13, 2001, and who has…”
Tyrun L. Jones v. Wendy Kelley, Dir., Arkansas Dep't of Corr., 2020 Ark. 290 (Ark. 2020). “In Benson, the judgment and conviction order reflected that Benson had been convicted of prior felonies and was subject to the enhancement set forth in sections 16-93-609 and 5-4-501. However, this court found that that Benson’s enhanced sentences were based on prior felonies…”
Tyrun L. Jones v. Wendy Kelley, Dir., Arkansas Dep't of Corr., 2020 Ark. 290 (Ark. 2020). “In Benson, the judgment and conviction order reflected that Benson had been convicted of prior felonies and was subject to the enhancement set forth in sections 16-93-609 and 5-4-501. However, this court found that that Benson’s enhanced sentences were based on prior felonies…”
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