Ark. Code Ann. § 16-97-101 (2026)

Research References

Ark. L. Rev.

Dustin K. Doty, Case Note: Saving Face: Arkansas's Application of the Confrontation Clause to Jury Sentencing Proceedings, 66 Ark. L. Rev. 549 (2013).

U. Ark. Little Rock L. Rev.

Cassandra Howell, Note: Braving Confrontation: Arkansas's Progressive Position Regarding Criminal Defendants' Confrontation Rights at Sentencing, 35 U. Ark. Little Rock L. Rev. 691 (2013).

Case Notes

Construction.

The permissive tone of the language in subdivision (4) is unmistakable in that the trial court has discretion and “may” give the alternative sentence instruction. Hayes v. State, 2018 Ark. App. 158, 544 S.W.3d 587 (2018).

Applicability.

The bifurcated procedures outlined in this chapter are applicable to cases involving an alleged habitual offender. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995).

Construction.

This section, which provides for sentencing by a jury after a plea of guilty under certain conditions, is not repugnant to Ark. R. Crim. P. 36.1 [superseded], which provides in part that, except as provided by Ark. R. Crim. P. 24.3(b), there shall be no appeal from a plea of guilty or nolo contendere; this section is to stand as compatible with the rule, recognizing that the legislature has provided not only for separate and distinct procedures governing jury trials and sentencing by jury but for evidentiary matters as well. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

The permissive tone of the language in subdivision (4) of this section is unmistakable. Dale v. State, 55 Ark. App. 184, 935 S.W.2d 274 (1996).

The court was clearly authorized under subdivision (4) of this section, although not obligated, to consider the recommended alternative sentence recommended by the jury. Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000).

Alternative Sentences.

Trial court abused its discretion when it failed to allow a jury to consider alternative punishment after it convicted defendant of sexual assault in the first degree, rather than rape. Miller v. State, 97 Ark. App. 285, 248 S.W.3d 487 (2007).

Trial court did not abuse its discretion when it refused to give defendant's requested instruction on the alternative sentence of probation because the decision on jury instructions was within the scope of the trial court and had such an instruction been given it was unlikely that the jury would have recommended probation, as it recommended consecutive twenty-five year terms, event though the minimum term was ten years. Benjamin v. State, 102 Ark. App. 309, 285 S.W.3d 264 (2008).

Because the permissive language of subdivision (4) of this section did not require a trial court to give an instruction on alternative sentencing, the trial court committed no error in declining defendant's request for an instruction recommending probation; even if the jury was so instructed, the trial court had the discretion to reject the jury's recommendation for probation, and the trial court did not believe that an alternative sentence was appropriate under the facts of the case. Stigger v. State, 2009 Ark. App. 596 (2009).

During defendant's trial for theft by receiving and theft of property, the court did not err under subdivision (4) of this section in refusing to give defendant's proffered jury instruction on the availability of probation as an alternative sentence because it gave the request for the instruction more than proper consideration; after previously completing a drug program, defendant had once again become involved with known felons. Malone v. State, 2012 Ark. App. 280 (2012).

Trial court did not abuse its discretion by refusing to give an alternative sentencing instruction given the jury’s reactions to the images of child pornography and the jury’s convicting defendant on all 20 counts and sentencing him to much more than the minimum punishment. Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424 (2014).

Trial judge did not abuse his discretion in not instructing the jury to consider a suspended sentence as an alternative sentence recommendation where the jury was instructed that it could give a nonbinding alternative-sentence recommendation of probation, but the jury declined to make such a recommendation and instead sentenced defendant to the maximum that it could under the law. Bell v. State, 2014 Ark. App. 458 (2014).

Trial court did not abuse its discretion in refusing to instruct the jury on probation as an alternative sentence where subdivision (4) of this section was permissive. Squyres v. State, 2015 Ark. App. 665, 476 S.W.3d 839 (2015).

Defendant was charged as a habitual offender, having been previously convicted of four felonies, and the jury convicted him of a Class D felony for possessing a usable amount of cocaine, and thus the jury could have imposed punishment within a range of zero years to not more than 15 years in prison; the circuit court explicitly considered defendant's criminal history and determined that an alternative sentence of probation would not be appropriate, and this was not an abuse of discretion, but an exercise of it. Wells v. State, 2017 Ark. App. 174, 518 S.W.3d 106 (2017).

Alternative sentence instruction was requested at the outset of sentencing, the trial court replied that it usually waited until the end of such proceedings to consider it, and when requested at the end, the trial court rejected it, and thus the trial court did exercise its discretion and no abuse of discretion was found. Morevover, defendant could not demonstrate prejudice, as the jury sentenced him for Class B felony first-degree battery to the maximum prison term, plus a $10,000 fine, and it strained credulity to argue that the jury would have recommended probation had it been given the option. Hayes v. State, 2018 Ark. App. 158, 544 S.W.3d 587 (2018).

Section 16-90-107(d) 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).

Circuit court did not err in denying defendant's request for an alternative sentencing instruction; the circuit court considered that defendant had now been convicted of three counts of sexual assault against very young children, and prejudice could not be shown, as the jury imposed a sentence more severe than the minimum sentencing option, indicating the jury would not have imposed an alternative sentence if provided that option. Mondy v. State, 2019 Ark. App. 290, 577 S.W.3d 460 (2019).

Appeal.

Where defendant failed to object to the bifurcation of his trial on ex post facto grounds and failed to obtain a ruling on that specific issue, he waived that argument on appeal. Smith v. State, 318 Ark. 142, 883 S.W.2d 837 (1994).

Some exceptions to the rule in § 16-91-101(c), that there is no right to appeal from a guilty plea, include (1) Ark. R. Crim. P. 24.3(b) permits an appeal from a conditional plea of guilty following the denial of a motion to suppress, (2) an appeal on the issue of the application of jail-time credit appears to be permissible, (3) the denial of a post-judgment motion, filed after a guilty plea to correct an illegal sentence, is appealable, and (4) a defendant may also appeal after a guilty plea when a jury sets punishment under the bifurcated procedure established by subdivison (6) of this section. Hampton v. State, 48 Ark. App. 93, 890 S.W.2d 279 (1995).

Since the enactment of this section, the court has generally disallowed appeals in guilty plea cases, the one exception being that the court reviews nonjurisdictional issues such as the admission of testimony and evidence which arose during the penalty phase of the trial; this position does not indicate a willingness to review the imposition of a sentence simply where the defendant maintains his sentence is excessive when in fact his sentence is within the range prescribed by statute for the offense in question. Cupit v. State, 324 Ark. 438, 920 S.W.2d 853 (1996).

Discovery.

This section and § 16-97-102 do not prevent the rules of discovery from applying; therefore, trial court erred in holding the rules of discovery were inapplicable to the sentencing phase of a bifurcated trial. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995).

Error Not Found.

While a trial court was authorized to instruct the jury on alternative sentences for which defendant might have qualified under subdivision (4) of this section, the statute was permissive and did not require the trial court to give such an instruction. The trial court's reasons for not offering the instruction based on the facts of defendant's case did not amount to an abuse of discretion. Suggs v. State, 2010 Ark. App. 571, 377 S.W.3d 461 (2010).

Evidence.

The trial court did not abuse its discretion when it allowed the state to introduce evidence of the defendant's attempted escape in the sentencing part of his trial for robbery. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999).

Harmless Error.

Failure to bifurcate trial for misdemeanor driving while intoxicated, first offense, held to be harmless error. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996).

Right of Confrontation.

Right of confrontation guaranteed by U.S. Const. Amend. VI and Ark. Const. Art. II, § 10 extends to a defendant's sentencing proceeding before a jury. To the extent Wallace v. State, 2010 Ark. App. 706, 378 S.W.3d 269 (2010), conflicted with this holding, it was overruled. Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144 (2011).

Where defendant pled guilty to rape and elected to be sentenced by a jury in a bifurcated proceeding, the trial court erred in admitting a videotaped statement of the child rape victim during the sentencing proceeding, because this violated defendant's right of confrontation under U.S. Const. Amend. VI and Ark. Const. Art. II, § 10. Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144 (2011).

Sentencing by Trial Court.

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).

In a case dealing with domestic offenses, although the jury was permitted to recommend an alternative sentence, the trial court had the discretion as to whether to impose it; thus, the trial court was permitted to accept a jury's recommended alternative sentences of probation and suspended sentences and then impose fines as a condition of those sentences, pursuant to § 5-4-303(c)(10) (now § 5-4-303(c)(8)). Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006).

Trial court imposed an illegal sentence when it rejected a jury's verdict and took it upon itself to sentence defendant where the jury's sentencing verdict of zero years in prison and a fine of zero dollars was a proper and valid sentence for second-degree battery; the appellate court sentenced defendant to three years of probation in accordance with the jury's alternative verdict under subdivision (4) of this section. Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007).

Voir Dire.

Circuit court did not violate defendant's right to a bifurcated trial when it included the word “feloniously” in the description of the charges read during voir dire; the court had considered the issue, decided it was necessary to inform the jury of the nature of the charges as required by Ark. R. Crim. P. 32.2, and provided a cautionary statement after reading the information so as to limit any prejudice. Hall v. State, 2018 Ark. App. 411, 558 S.W.3d 399 (2018).

Waiver of Jury Sentencing.

Defendant waived any issue about voir dire of the jury panel when he waived his right to have the jury decide punishment, asked the trial judge to set the sentence, and made no record of the reason for so doing. Armer v. State, 326 Ark. 7, 929 S.W.2d 705 (1996).

Sentencing, as in trial, allowed a defendant to waive a jury only with the agreement of the state; where the state declined to consent to defendant's request to waive a jury for his resentencing, the trial court did not err in submitting the matter to a jury. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825, cert. denied, 537 U.S. 1058, 123 S. Ct. 633, 154 L. Ed. 2d 539 (2002).

Cited: Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996); Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996); McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998); Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918 (2010).