Ark. Code Ann. § 5-4-301 (2026)

Research References

U. Ark. Little Rock L.J.

Survey of Legislation, Criminal Law 14 U. Ark. Little Rock L.J. 753.

Case Notes

Citation of Statute.

In the case of requests for probation or a suspended sentence, it is required that appellant cite the appropriate statute under which he claims he is entitled to such relief, and if the appellant's request for probation is specific, but does not include an assertion that appellant was entitled to probation pursuant to § 5-4-104 and this section, the Supreme Court will not address whether appellant is entitled to probation based on those sections. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).

Convictions.

Trial court did not commit error in considering the conduct of the defendant, including prior convictions. Lingo v. State, 271 Ark. 776, 610 S.W.2d 580 (1981).

Section 5-4-304 was intended merely as an alternative method of sentencing, for subsection (d) of this section contains two specific exceptions to the general rule that a judgment of conviction is not to be entered against one who is placed on suspension or probation. Smith v. State, 18 Ark. App. 152, 713 S.W.2d 241 (1986).

Where defendant received only probation, i.e., no fine or prison term, no conviction judgment should have been entered, thus entitling her later to be discharged and have all proceedings dismissed against her if she complied with the conditions of her probation. Baker v. State, 318 Ark. 223, 884 S.W.2d 603 (1994).

Circuit court had the authority to impose a sentence of probation because no evidence was presented and no determination was made that defendant was a habitual offender who had been convicted of two or more felonies. Because the sentence of probation was not an illegal sentence, it followed that the revocation of probation was also not illegal. Whitson v. State, 2014 Ark. App. 283 (2014).

Court.

The word court refers to the judge, and not the judge and jury. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979).

Court's Authority.

The propriety of suspending the execution of a sentence rests in the sound discretion of the trial court, not in the appellate court. Parker v. State, 265 Ark. 134, 577 S.W.2d 414 (1979).

At the time of revocation of probation the trial court could impose any sentence on probationer that might have been imposed originally for the offense provided that any sentence to pay a fine or to imprisonment, when combined with any previous fine or imprisonment imposed for the same offense, not exceed the limits of §§ 5-4-401(a)(3) and 5-4-201(a)(1). Simmons v. State, 13 Ark. App. 208, 681 S.W.2d 422 (1985).

The trial court was without authority to suspend the sentence of a defendant convicted of driving while intoxicated or put him on probation so he would not have to attend an alcohol treatment or education program. Harris v. State, 285 Ark. 345, 686 S.W.2d 440 (1985).

The court did not have the power to revoke defendant's suspended sentence prior to the commencement of the suspension period. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).

Since defendant pled guilty to a Class C felony as a habitual offender, the circuit court was required to sentence her in accordance with subdivision (a)(2) of this section and § 5-4-501(a)(2)(D), and the circuit court exceeded its statutory authority when it placed defendant on probation; defendant knew about the statute's sentencing range and, at the time of defendant's plea in open court, the circuit court expressly reiterated that her offense carried with it a sentencing range of three to twenty years' imprisonment. State v. Joslin, 364 Ark. 545, 222 S.W.3d 168 (2006).

Circuit court did not err in revoking defendant's suspended sentence and probation and in sentencing him to 197 months imprisonment with forty-seven months suspended because the circuit court was within its authority to revoke the original sentences and prescribe the resulting sentence and was also within its authority to run the prescribed sentences consecutively when the prescribed sentence in the first case, thirty months with an additional forty-seven months' suspended, was within the circuit court's authority; because defendant was convicted of a Class C felony, the circuit court could have originally sentenced him to ten years' imprisonment for failure to appear pursuant to § 5-4-401(a)(4), the sentence imposed as a result of revocation in the second case did not exceed the statutory maximum for the underlying offense and was not illegal on its face, and a notation on the judgment and disposition order in the second case was an insufficient basis for defendant's allegation that the circuit court unambiguously intended to impose a presumptive sentence of thirty-six months in the event he failed to comply with the conditions of his probation. Ward v. State, 2010 Ark. App. 79, 374 S.W.3d 62 (2010).

Where defendant was guilty of violating § 5-64-401(a)(1) (repealed by 2011 Ark. Acts 570, § 33) and § 5-64-403(c)(5) and the circuit court sentenced him as a habitual offender pursuant to the § 5-4-501, the sentence was nonetheless illegal because under subdivision (a)(2) of this section, the circuit court did not have the authority to suspend 10 years of the 15-year sentence it imposed. State v. O'Quinn, 2013 Ark. 219, 427 S.W.3d 668 (2013).

Drug Offenses.

Former subdivision (a)(1)(F) of this section includes possession of methamphetamine with intent to deliver. State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994).

Where defendant pleaded guilty to possession with the intent to deliver, and should have been sentenced to at least ten years imprisonment without probation under § 5-64-401(a)(1)(i), the trial judge had no authority to order probation based on the judge's sua sponte reduction of the charge to mere possession. State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994).

Act 192 of 1993 amended §§ 5-4-104(e)(1) and subdivision (a)(1) of this section to permit suspension and probation as alternative sentences for certain drug offenses. Crouse v. State, 2012 Ark. 442 (2012).

Effect of Amendments.

The version of this section in effect on the date of the crime was committed is the statute that must govern sentencing. State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

The trial court could not suspend the sentence for a violation of § 5-64-401 committed prior to August 13, 1993, the effective date of the 1993 amendment to this section and to § 5-4-104. State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

Acts 1993, No. 192 amended subdivision (a)(1)(F) of this section and former § 5-4-104(e)(1)(F) to remove the language from the two statutes which prohibited trial courts from imposing suspended imposition of sentence or probation of controlled substance offenders; the act does not provide for retroactive application, and, thus, its operation is prospective only. State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1993); State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994); State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994).

The fact that Acts 1993, No. 192, now codified as § 5-4-104(e)(1) and subdivision (a)(1) of this section, was approved before commission of the crime and effective after the crime did not require its application; the effective date of the act was controlling. Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995).

Where the amendment to subsection (d)(2) was not in effect at the time a crime was committed, the circuit court had no jurisdiction to modify its original sentence. Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001), superseded by statute as stated in, Sheets v. State, — Ark. App. —, — S.W.3d —, 2002 Ark. App. LEXIS 416 (July 3, 2002), superseded by statute as stated in, Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002), superseded by statute as stated in, Mills v. State, — Ark. App. —, — S.W.3d —, 2004 Ark. App. LEXIS 128 (Feb. 11, 2004).

Entry of Conviction.

When the trial court placed the defendant on probation and imposed a fine of $500.00 in the original cases, a valid judgment of conviction was entered. Webb v. State, 66 Ark. App. 367, 990 S.W.2d 591 (1999).

Fine.

A separate, unsatisfied, existing fine is not the sort of contemporaneous “fine” mentioned in subdivision (d)(1) of this section. Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), superseded by statute as stated in, Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002), superseded by statute as stated in, Crowder v. State, — Ark. App. —, — S.W.3d —, 2003 Ark. App. LEXIS 324 (Apr. 23, 2003), superseded by statute as stated in, Mills v. State, — Ark. App. —, — S.W.3d —, 2004 Ark. App. LEXIS 128 (Feb. 11, 2004), superseded by statute as stated in, McCrary v. State, — Ark. App. —, — S.W.3d —, 2005 Ark. App. LEXIS 24 (Jan. 12, 2005).

A sentence by a circuit court to pay a fine is put into execution when the judgment of conviction is entered. Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), superseded by statute as stated in, Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002), superseded by statute as stated in, Crowder v. State, — Ark. App. —, — S.W.3d —, 2003 Ark. App. LEXIS 324 (Apr. 23, 2003), superseded by statute as stated in, Mills v. State, — Ark. App. —, — S.W.3d —, 2004 Ark. App. LEXIS 128 (Feb. 11, 2004), superseded by statute as stated in, McCrary v. State, — Ark. App. —, — S.W.3d —, 2005 Ark. App. LEXIS 24 (Jan. 12, 2005).

Illegal Sentence.

While § 5-4-104 and this section did not prohibit the suspended imposition of sentence for the offense of sexual assault in the second degree, the trial court could not have entered a judgment imposing a sentence for 180 months' imprisonment and also suspending imposition of an additional 180 months' imprisonment because the judgment had the effect of placing defendant under the jurisdiction of the court for 360 months when the maximum sentence authorized by statute was 240 months. Ward v. State, 2016 Ark. 8, 479 S.W.3d 9 (2016).

Appellant's original sentence was not illegal where the term of imprisonment was more than the statutory minimum, and thus, the trial court did not lack authority to impose an additional suspended sentence. Todd v. State, 2016 Ark. App. 270, 493 S.W.3d 350 (2016).

Mandatory Sentences.

Since § 5-4-104(c) provides that a defendant convicted of a Class Y felony must be sentenced to imprisonment, a defendant convicted of such an offense could not be given a suspended sentence or probation even where the prosecutor agreed that some form of probation would be proper. Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985).

The circuit court erred by imposing a sentence of three years' supervised probation for possession of a controlled substance with intent to deliver, pursuant to § 16-93-501(10), where intent to deliver cocaine was a Class Y felony and a minimum sentence of 10 years was mandatory under a former version of subdivision (a)(1)(F) of this section and former § 5-4-104(e)(1)(F). State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994).

Where, at the time the offense was committed, § 5-64-407, former § 5-4-104(e)(1)(F) and a former version of subdivision (a)(1)(F) of this section prohibited probation for delivery (as opposed to possession) of a controlled substance, the trial court erred in placing defendant on probation. State v. Landis, 315 Ark. 681, 870 S.W.2d 704 (1994); State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994).

Mitigating Circumstances.

It was not improper for the trial court to refuse to allow defendant's psychiatrist to testify to the jury, as to a mitigating circumstance, since this section leaves mitigating circumstances for the consideration of the sentencing court, even though § 5-4-103 provides that the jury shall fix punishment. Killman v. State, 274 Ark. 422, 625 S.W.2d 489 (1981).

The jury has no authority to grant probation; therefore, questions of mitigation are properly presented to the court which has the responsibility of sentencing after the maximum punishment is fixed by the jury. Lair v. State, 283 Ark. 237, 675 S.W.2d 361 (1984).

Modification.

The provisions of subdivision (d)(1) of this section mean that a guilty plea, a fine, and suspension of imposition of sentence amount to a conviction, which, in turn, entails execution; this precludes a court from proceeding under the auspices of § 5-4-306(b). Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), superseded by statute as stated in, Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002), superseded by statute as stated in, Crowder v. State, — Ark. App. —, — S.W.3d —, 2003 Ark. App. LEXIS 324 (Apr. 23, 2003), superseded by statute as stated in, Mills v. State, — Ark. App. —, — S.W.3d —, 2004 Ark. App. LEXIS 128 (Feb. 11, 2004), superseded by statute as stated in, McCrary v. State, — Ark. App. —, — S.W.3d —, 2005 Ark. App. LEXIS 24 (Jan. 12, 2005).

By enacting Acts 1999, No. 1569, the legislature specifically intended to overturn prior case law and empower trial courts to use intermediate sanctions in probation revocations and to modify original sentences where appropriate; thus, the trial court was within its jurisdiction to modify defendant's original order by its second revocation order. Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002).

1999 Ark. Acts 1569 was not in effect at the time defendant's original crime was committed and could not be invoked by the State to apply to the facts of defendant's case; defendant committed the offense and his sentence was put into execution prior to the effective date of the provisions of the act and, for that reason, the act did not apply because the original charge was committed prior to April 15, 1999, such that defendant's plea of guilty, coupled with a fine and probation, constituted a conviction, thereby depriving the trial court of subject matter jurisdiction to amend or modify his original sentence that had been executed. Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003).

Upon the revocation of defendant's probation for eight violations of the Arkansas Hot Check Law, the trial court was authorized under subdivision (d)(2) of this section and § 5-4-309(f)(1)(A) to modify the original order and impose multiple sentences of imprisonment to be served consecutively in accordance with § 5-4-403(a). The trial court did not err by sentencing defendant to twenty years in prison each on four hot-check counts to run consecutively and ten years in prison each on the other felony hot-check counts to run concurrently. Maldonado v. State, 2009 Ark. 432 (2009).

Suspension of Sentence.

When a defendant is convicted of a Class Y felony, the General Assembly has specifically provided that a trial court shall not suspend imposition of sentence as to a term of imprisonment or place the defendant on probation. State v. Stephenson, 340 Ark. 229, 9 S.W.3d 495 (2000).

Under Ark. Code Ann. § 5-4-401(a)(1), a defendant convicted of a Class Y felony had to be sentenced to a term of not less than 10 years nor more than 40 years, or life; defendant's conviction for simultaneous possession of drugs and a firearm constituted a Class Y felony for which no part of her sentence could be suspended pursuant to Ark. Code Ann. § 5-4-301(a)(1)(C); therefore, the trial court erred when it suspended 7 years of her 10-year sentence. State v. Hardiman, 353 Ark. 125, 114 S.W.3d 164 (2003).

Under subdivision (a)(1)(F), the trial court lacked statutory authority to suspend imposition of defendant's 20-year sentence for delivery of cocaine upon defendant's guilty plea in 1991 and the judgment was facially invalid, thus, the 20-year sentence that petitioner was currently serving (upon the revocation of the suspended sentence in 1998), was illegal; however, an illegal sentence could be corrected and remand for resentencing was proper. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003).

Where defendant pleaded guilty to delivery of a controlled substance and possession of a controlled substance, and the former sentence was suspended and the latter sentence was imposed and served, and where suspension of the delivery offense was illegal pursuant to this section, it did not result in unauthorized dual judgments of sentence, making the suspended sentence void by operation of law, because the two sentences were separate and distinct. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003).

There was no violation of appellant's due process rights for entitlement to habeas relief where appellant had been sentenced to five years' probation and fined for first-degree sexual abuse, a trial court properly sentenced him to 10 years in prison upon revocation of probation under § 5-4-309(f) because appellant could have originally received that term under §§ 5-14-108, 5-4-401(a)(4) and there had been no sentence imposed that had been improperly modified under §§ 5-4-301(d) (1997), or 16-93-402(e). Rickenbacker v. Norris, 361 Ark. 291, 206 S.W.3d 220 (2005).

Subdivision (a)(2)(A) of this section does not prohibit the suspension of any portion of defendant's habitual sentence where case law interpreted a similarly worded former statutory provision to find that the trial court was free to suspend an additional term in the habitual range as long as only a portion was suspended beyond the statutory minimum term, and the General Assembly had not rejected that interpretation. Todd v. State, 2016 Ark. App. 204, 489 S.W.3d 207 (2016).

Pursuant to subdivision (d)(2) of this section and former § 5-4-309 (see now § 16-93-308), the circuit court was authorized at revocation to modify the original order and impose any sentence that originally could have been given. Todd v. State, 2016 Ark. App. 204, 489 S.W.3d 207 (2016).

This section did not preclude an order of suspended imposition of sentence (SIS) where at the time appellant was placed on SIS, it had not been determined that he had previously been convicted of two or more felonies; he was not charged, convicted, or sentenced as an habitual offender. Robertson v. State, 2016 Ark. App. 379, 499 S.W.3d 247 (2016).

Because appellant was not determined to be a habitual offender when his plea was accepted and he was placed on suspended imposition of sentence (SIS), he could not be sentenced as a habitual offender on revocation of that SIS. Appellant's 20-year sentence on revocation did not exceed the nonhabitual range for Class B felonies, but the sentencing order erroneously reflected that he was sentenced as a habitual offender and the case was remanded in part for entry of a corrected sentencing order. Robertson v. State, 2016 Ark. App. 379, 499 S.W.3d 247 (2016).

Revocation of defendant's suspended imposition of sentence (SIS) was upheld; based on precedent, the SIS was not an illegal sentence even though defendant was an habitual offender because the circuit court also imposed a term of imprisonment. Anderson v. State, 2018 Ark. App. 389, 557 S.W.3d 283 (2018).

Cited: Coleman v. State, 15 Ark. App. 5, 688 S.W.2d 313 (1985); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Diffee v. State, 290 Ark. 194, 718 S.W.2d 94 (1986); Robinson v. Lockhart, 823 F.2d 210 (8th Cir. 1987); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989); Lee v. State, 299 Ark. 187, 772 S.W.2d 324 (1989); Howard v. State, 301 Ark. 281, 783 S.W.2d 61 (1990); Pennington v. State, 305 Ark. 507, 808 S.W.2d 780 (1991); Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161 (1991); Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992); Robinson v. State, 41 Ark. App. 20, 847 S.W.2d 49 (1993); Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993); Jones v. State, 54 Ark. App. 150, 924 S.W.2d 470 (1996); Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996); Harrell v. State, 331 Ark. 232, 962 S.W.2d 325 (1998); Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001); United States Bank, N.A. v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003); Rickenbacker v. Norris, 361 Ark. 291, 206 S.W.3d 220 (2005); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007).