Ark. Code Ann. § 5-4-103 (2026)

Case Notes

Constitutionality.

Arkansas's new bifurcated sentencing laws did not violate the Ex Post Facto Clause because they did not criminalize conduct that was previously non-criminal, did not increase the severity or harshness of the punishment for the offenses that defendant committed, and did not deprive him of a defense that was available to him at the time he committed the offenses with which he was charged; because the penalty or sentence authorized under the prior and new sentencing statutes remains the same as applied in defendant's situation, any change was merely procedural and not substantively prejudicial or an ex post facto violation. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994).

Arkansas's bifurcated sentencing procedures in §§ 5-4-103 and 16-97-103 are not violative of the ex post facto clause in the United States Constitution or Ark. Const., Art. 2, § 17. Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995).

Where, on the first day of trial, the trial court conducted a proceeding under the heading of “Bill of Exceptions” in which witnesses and other trial-related matters were discussed at length and defendant had ample opportunity to make any motions, and where defendant elected to wait until the second day of trial to file his motion concerning the constitutionality of Acts 1993, Nos. 535 and 551, and alerted the court of its pendency only on the third day of trial, because an issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal, the motion in question was untimely. Watkins v. State, 320 Ark. 163, 895 S.W.2d 532 (1995).

When defendant was originally tried and convicted in 1993, Arkansas law then authorized, and he received, a non-bifurcated trial. However, after his original conviction, but before his case was reversed and remanded, Arkansas law was amended to permit bifurcated trials in all felony cases. At defendant's second trial on remand, trying defendant's case pursuant to the newly-enacted bifurcated trial procedure did not violate the Ex Post Facto Clause. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995).

In General.

Sentencing in Arkansas is entirely a matter of statute. State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993).

Since the court did not believe the “zero” punishment submitted by the jury in the primary verdict form was valid, the court could have opted to impose the jury's recommended alternative sentence of eighteen months probation instead of taking over sentencing. Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000).

Construction.

Section 5-4-501, requiring that one who has previously been convicted of two or more violent felonies and who is then convicted of rape is to be sentenced to life imprisonment without parole, is not in conflict with subsection (a) of this section, providing that a jury is to fix punishment of one found guilty of a felony, because of the additional language of this section that the jury is to fix punishment “as authorized by this chapter.” Ricks v. State, 327 Ark. 513, 940 S.W.2d 422 (1997).

Applicability.

The trial court's retroactive employment of the 1994 versions of §§ 5-4-103 and 16-97-103 to offenses committed in 1993 did not subject defendant to substantive prejudice in violation of the Ex Post Facto Clause of the United States Constitution. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994).

Authority of Court.

After the jury's confusion resulted in the jury returning two verdict forms, one recommending an alternative sentence of probation without specifying a term and the other recommending only a fine, there was no error when the circuit court accepted a sentencing agreement allowing the court to sentence defendant to a term of years of probation rather than resubmitting the matter to the jury. Barfield v. State, 2019 Ark. App. 501, 588 S.W.3d 412 (2019).

After the jury's confusion resulted in the jury returning two verdict forms, one recommending an alternative sentence of probation without specifying a term and the other recommending only a fine, the circuit court did not abuse its discretion in sentencing defendant to 10 years' probation and imposing a $3,500 fine; defense counsel agreed to allow the court to sentence defendant to a term of years of probation rather than resubmitting the matter to the jury and the circuit court accepted the jury's alternative sentencing recommendation of probation and expressly advised defendant that the fine was imposed as a condition of the probation. Barfield v. State, 2019 Ark. App. 501, 588 S.W.3d 412 (2019).

Construction With Other Laws.

This section does not repeal § 16-90-120; 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).

Merger of two capital murders was not required under § 5-1-110(d)(1), and where defendant waived a sentencing hearing, thereby giving the trial court sole sentencing authority under § 5-4-103(b)(4), the trial court had the authority to order defendant's sentences to run consecutively under § 5-4-403(a). Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).

Sentence Fixed by Jury.

Under § 16-89-126(c) and this section, the defendant was entitled to have a jury fix his sentence for his conviction of driving while intoxicated, and his proffered jury instruction to this effect should have been given. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

Neither the trial court nor counsel should comment on parole, because the jury would be inclined to impose excessive punishment in order to compensate for early release. Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993).

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. Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007).

Petitioner's death sentence could not stand because the manner in which the jury completed its form allowed only the conclusion that it eliminated from its consideration all evidence presented of mitigating circumstances and sentenced petitioner to death solely based on an aggravating circumstance, which was reversible error. Williams v. State, 2011 Ark. 534 (2011), overruled, Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233 (2014).

Defendant's appeal of convictions for residential burglary and theft of property was frivolous because, inter alia, defendant was not entitled to have the trial court fix sentence, since a jury convicted defendant of a felony and the prosecutor did not consent to sentencing by the court. Guthrie v. State, 2017 Ark. App. 681 (2017).

Sentencing by Court.

Trial court's sentencing action was proper. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

The requirement that the jury fix the sentence does not render the presentence report requirement of § 5-65-109 meaningless; there are situations when the report still will be of value, as when the court fixes the sentence under one of the exceptions of subsection (b) of this section. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

Where none of the circumstances enumerated in subsection (b) were applicable, judge lacked statutory authority to increase term of imprisonment imposed by a jury, and his action was unauthorized and illegal. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992).

Where the judge said nothing about balancing the fine and imprisonment elements of the sentence when he reduced the fine and illegally increased the sentence, the appellate court had no reason to reverse the fine portion of the sentence. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992).

There is nothing in this section that limits a circuit court's discretion to what the jury was considering before the court assumed control of the matter, and sentence which was within the statutory range was not an abuse of the circuit court's discretion. Henderson v. State, 310 Ark. 287, 835 S.W.2d 865 (1992).

The trial court was authorized to fix punishment when the jury was unable to agree upon the punishment and only eleven jurors remained after one was disqualified. Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997).

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 § 5-64-401(a)(1), which required a minimum sentence of 20 years. Ewings v. State, 85 Ark. App. 411, 155 S.W.3d 715 (2004).

Sentence imposed on the enhancement offense of commission of a felony with a firearm was not void or illegal as it was specifically allowed by statute. By failing to object when given the opportunity, defendants indicated their agreement with the trial court's fixing the punishment. Watkins v. State, 2009 Ark. App. 124, 302 S.W.3d 635 (2009).

Under subdivision (b)(4) of this section, the judge rather than the jury may impose a sentence where the prosecution and the defense agree that the court may fix punishment. Nevertheless, it is generally improper for the trial court to sentence on the enhancement provision in place of the jury. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (2010).

Waiver of Sentence by Jury.

Defendant executed a written waiver of his right to a jury trial, which was signed by defendant, his attorney, the prosecutor, and the judge, and the circuit court made a verbatim record of defendant's personal waiver of his right to jury trial in open court; because defendant was waiving his right to be tried by a jury on the charges, he was also waiving his right to be sentenced by a jury on the charges. Johns v. State, 2014 Ark. App. 560, 444 S.W.3d 873 (2014).

Waiver form provided that defendant was facing sentences for up to 15 years, which range clearly showed the enhanced sentencing range, as ordinarily the range was not to exceed six years for a Class D felony, plus the circuit court directly referenced the enhanced punishment ranges and asked defendant if he understood the same; the waiver ensured that defendant understood that, if found guilty, he was to be sentenced by the circuit court, and his waiver was valid. Johns v. State, 2014 Ark. App. 560, 444 S.W.3d 873 (2014).

Cited: Killman v. State, 274 Ark. 422, 625 S.W.2d 489 (1981); Scott v. State, 284 Ark. 388, 681 S.W.2d 915 (1985); Davis v. State, 291 Ark. 191, 723 S.W.2d 366 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987); Mulanax v. State, 301 Ark. 321, 783 S.W.2d 851 (1990); Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992); Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997); Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003); Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006); Loar v. State, 368 Ark. 171, 243 S.W.3d 923 (2006); Henry v. State, 2011 Ark. App. 169, 378 S.W.3d 832 (2011).