Ark. Code Ann. § 5-4-303 (2026)

Research References

ALR.

Propriety of Requirement, as Condition of Probation, That Defendant Refrain from Use of Intoxicants. 46 A.L.R.6th 241.

Validity, Construction, and Application of State Computer Crime and Fraud Laws. 87 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Statutes Prohibiting Use of Computers and Internet as Conditions of Probation or Sentence. 89 A.L.R.6th 261.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Criminal Procedure, 26 U. Ark. Little Rock L. Rev. 885.

Case Notes

In General.

This section is available to the trial courts if deemed just and proper. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

An “alias bench warrant” did not meet the requirements of former § 5-4-309(e) because such a warrant was not issued for an arrest due to violation of probation under subdivision (h)(2) of this section (former subsection (f)); however, under subdivision (h)(2), which was adopted after § 5-4-309, the trial court retained jurisdiction to revoke defendant's probation, even beyond the expiration of defendant's probation period in 2000, where defendant had failed to pay the full amount of required restitution. Smith v. State, 83 Ark. App. 48, 115 S.W.3d 820 (2003).

Appeal.

Where defendant was tried for assault on a family member and felon in possession of a firearm, at no time did defendant raise the issue at trial that the State had failed to provide defendant with a written list of the conditions of defendant's probation on a prior conviction such that defendant's probation could not be revoked; thus, the issue was waived on appeal, and in any event, defendant had stipulated that the new charges would constitute grounds for revocation and there was no error in revoking defendant's probation. Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004).

Contrary to defendant's allegation, the terms and conditions of defendant's suspended imposition of sentence were a part of the trial court's sentencing order and were also included in the clerk's record. The appellate court could not say that the trial court clearly erred in revoking defendant's suspended sentence. Valencia v. State, 2016 Ark. App. 176 (2016).

Community Service.

Where the written notice of the terms of probation provided to the defendant indicated that he was to perform 100 hours of community service, but did not explicitly impose a deadline earlier than the completion of his period of probation, such a condition imposed by the probation office was invalid. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998).

Explanation of Conditions.

Where defendant had been clearly advised in open court what was expected of him for him to remain on probation, there was substantial compliance with the requirement he be explicitly advised of his conditions of probation and not prejudiced in any way; and while the record did not reflect that defendant ever had a conference with probation officials, or that defendant actually received documents articulating the conditions of his probation, this omission did not vitiate his suspended sentence and probation. Thornton v. State, 267 Ark. 675, 590 S.W.2d 57 (Ct. App. 1979).

All conditions for a suspended sentence, including any requirement of good behavior, must be in writing if the suspended sentence is to be revocable; therefore, courts have no power to imply and subsequently revoke conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence. Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980).

Where the trial court failed to expressly condition the appellant's suspended sentence as required by statute, the trial court lacked the authority to revoke his suspended sentence on the basis of a violation of an implied condition that the defendant maintain good behavior and refrain from criminal conduct. Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980).

This section and § 16-90-106 clearly show that the defendant is entitled to know the effect of his sentence, and the trial court was held not to have performed this function. Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), superseded by statute as stated in, Smith v. State, 18 Ark. App. 152, 713 S.W.2d 241 (1986).

Where defendant was not given written statement of conditions for release but was merely told that suspension was during good behavior, the trial court erred in revoking defendant's suspended sentence, on the basis that the state had failed to produce any proof that appellant had any knowledge of the conditions of suspension or probation. Neely v. State, 7 Ark. App. 238, 647 S.W.2d 473 (1983).

The requirement in subsection (e) is only a procedural matter which, if not complied with, constitutes reversible error, but in no wise ousts the jurisdiction of the court; like all other procedural errors for which reversal on appeal might be based, it may be waived by failure to assert it. Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984).

Modification.

Since court retains jurisdiction of a case when it suspends imposition of sentence, it also has power to modify conditions of a suspension; thus, the court is authorized to modify the conditions which are imposed when the imposition of sentence is suspended, or to impose additional conditions, as long as the conditions are changed as authorized by this section. Palmer v. State, 31 Ark. App. 97, 788 S.W.2d 248 (1990).

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).

Trial court lacked authority, pursuant to subdivision (d)(2) of this section, to lengthen defendant's probationary period where defendant had made progress in the drug-court program under the Drug Court Act, § 16-98-301 et seq., because the trial court did not hold a revocation hearing pursuant to § 5-4-310. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895 (2009).

No Cause for Revocation.

Trial court had no jurisdiction to revoke defendant's suspended sentence, because defendant owed no restitution at the end of his suspended sentence, and the trial court could not retain jurisdiction over him; defendant's child support was not to make good an actual economic loss of a victim of his failure to comply with the reporting requirements of the Sex and Child Offender Registration Act. Owens v. State, 2009 Ark. App. 532, 337 S.W.3d 527 (2009).

Revocation of defendant's probation, based upon defendant absconding, was inappropriate because there was nothing in the conditions requiring defendant to report or to notify the probation department of a change of address. Accordingly, the circuit court based its revocation of defendant's probation on a violation that was not a written condition of defendant's probation. Tomes v. State, 2019 Ark. App. 267, 577 S.W.3d 21 (2019).

Rehabilitation Program.

Where the suspended sentence was expressly conditioned upon the successful completion of the drug rehabilitation program, but where defendant did not complete the program, and there was no showing that defendant was arbitrarily dismissed from the program, then the trial judge could justifiably find by a preponderance of the evidence that the defendant had failed to comply with a condition of his suspension or probation. Adams v. State, 269 Ark. 601, 599 S.W.2d 437 (Ct. App. 1980).

Trial court properly revoked defendant's suspended sentence for sexual abuse and sentenced defendant to six years in prison because it was undisputed that defendant never completed the Arkansas Reduction of Sexual Victimization Program, which was a condition of the suspended sentence pursuant to subsection (g) of this section. Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567 (2009).

Restitution or Reparation.

Subdivision (c)(8) is aimed at allowing an accused to remain out of prison so long as satisfactory payments of restitution are being made; immediate imprisonment would thwart such intent. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

If the court suspends the imposition of sentence or places defendant on probation conditioned upon making restitution as provided by this section, payment must be in an amount the defendant can afford to pay and the victim, defendant, and prosecuting attorney must agree on the amount. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

A circuit court retains jurisdiction over a defendant who has been orderd to pay restitution as a condition of a deferred imposition of sentence until the restitution has been paid in full, even beyond the duration of deferment. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993).

The “shall” in subsection (f) of this section indicates that the court's jurisdiction automatically continues until the restitution is complete; moreover, the disjunctive “or” gives the court the option to either extend the probation period or revoke the suspended sentence. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993).

Defendant's argument that, under this section he had to agree to the amount of restitution before it was imposed by the court, was meretless; the statute simply provided that the court could set the amount of restitution if the victim, defendant, and prosecuting attorney agree to allowed the court to do so. Tumlison v. State, 93 Ark. App. 91, 216 S.W.3d 620 (2005).

Car's insurer, which was required to pay compensation to the owner of the car as an indirect result of defendant's crime of fleeing and theft by receiving the car after defendant wrecked the car, rendering it a total loss, was a “victim” and an “aggrieved party” entitled to restitution under § 5-4-205 and this section. Singleton v. State, 2009 Ark. 594, 357 S.W.3d 891 (2009).

Trial court did not err in continuing defendant's probation for failure to pay restitution as ordered, despite defendant's argument that she was looking for work, that she was seeking to have her theft conviction overturned, and that she was trying to get disability, all of which claims were seriously undermined by the state. Newsom v. State, 2011 Ark. App. 760, 387 S.W.3d 245 (2011), rehearing denied, — Ark. App. —, — S.W.3d —, 2012 Ark. App. LEXIS 75 (Ark. Ct. App. Jan. 4, 2012).

Court retained jurisdiction to revoke the suspended sentence for failure to pay restitution, because the petitioner was charged with fleeing to avoid arrest for possession of marijuana and causing property damage while fleeing, and was ordered to pay restitution for the damage he caused during the course of the criminal episode. Arter v. State, 2012 Ark. App. 327, 414 S.W.3d 391 (2012).

Trial court was without jurisdiction to revoke defendant's suspended sentence for fourth offense DWI, because the period of the suspended sentence had expired two years prior to the state filing a petition for revocation. Defendant was not ordered to pay restitution, so jurisdiction could not be continued under subdivision (h)(2) of this section. Wallace v. State, 2012 Ark. App. 571 (2012).

Sentence Upon Revocation of Suspension.

Where defendant was sentenced to period of imprisonment for one year and any additional term of imprisonment for a period of up to five years was suspended, imposition of nine year sentence upon revocation of suspension when court found defendant, subsequent to his release committed the crime of robbery was proper since 10 years is the maximum for the crime for which he was placed on suspension. Smith v. State, 18 Ark. App. 152, 713 S.W.2d 241 (1986).

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).

When defendant was serving a suspended sentence for overdraft, theft of property, theft by deception, and two counts of failure to appear, he failed to pay his court-ordered restitution of $82,000; the trial court did not err by revoking his suspended sentence. While this section permitted the trial court to fashion an alternative remedy that did not involve incarceration, the trial court sentenced defendant to ten years in the Arkansas Department of Correction. Reese v. State, 2009 Ark. App. 678 (2009).

Statement of Conditions.

Decision to revoke probation due to a probationer's failure to comply with conditions was proper because written conditions were provided probationer as required by subsection (g) of this section; there was evidence that the conditions were expressly communicated in writing and verbally to the probationer; and there was no evidence of confusion on the probationer's part. White v. State, 2010 Ark. App. 157 (2010).

There is no requirement under this section that the defendant sign a written acknowledgment when he receives the written statement of conditions or that one be introduced at a revocation hearing. Even without considering certain testimony, the trial court found that defendant received a copy of the conditions of his probation based on testimony about routine practices; moreover, defendant indicated by his testimony that he was aware of the conditions of his probation when he disputed the violations and partially complied with the conditions. Johnson v. State, 2014 Ark. App. 606, 447 S.W.3d 143 (2014).

Suspension or Probation.

After release from prison an inmate is on probation under supervision of the Department of Correction; the distinction between suspension and probation is whether supervision is exercised, and that is the reason the statutes prohibit a court from sentencing a defendant to a term in prison and following it by a period of probation. Section § 5-4-104(e)(3) appears to allow a period of suspension following a term in prison. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

Subsection (f) did not authorize the trial court to extend defendant's probation for his failure to pay the fine and costs; subsection (f) only applies to defendants ordered to pay restitution or reparations. Jones v. State, 54 Ark. App. 150, 924 S.W.2d 470 (1996).

Unauthorized Sentence.

Where after the defendant entered a guilty plea to class C felony theft of property, for which the maximum sentence is 10 years, a sentence of 6 years in prison, with 2 years suspended on condition that the defendant pay the sum of $135,000 at the rate of $200 per month, beginning 60 days after defendant's release from prison, and continuing for 12 years, at which time a civil judgment would be entered for the outstanding balance, was not authorized. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

Upon defendant's conviction for rape and second-degree battery, the circuit court erred in ordering him to complete a sex-offender treatment program because he was sentenced under §§ 5-4-401, 5-4-501 and these statutes did not authorize the court to order a sex-offender treatment program. Pursuant to this section, a circuit court may clearly place conditions on a defendant when the court suspends the imposition of sentence or places the defendant on probation, but that there is no similar provision in § 5-4-104(d) that would allow a court to place specific conditions on a sentence of incarceration. White v. State, 2012 Ark. 221, 408 S.W.3d 720 (2012).

Upon revoking defendant's probation for the fraudulent use of a credit or debit card, the trial court sentenced defendant to 365 days' incarceration and required her to attend a drug program. Because defendant was not sentenced to probation, the condition to incarceration was not authorized by subdivision (d)(4) of this section; therefore, the sentence was illegal. Runion v. State, 2012 Ark. App. 365 (2012).

In a case involving rape and other offenses, a remand was necessary for a trial court to resolve an incongruity within the judgment and commitment order itself, which referred to conditions of a suspended sentence, despite a specification that there were no suspended imposition of sentence. If completion of a Reduction of Sexual Victimization Program was ordered as a condition of incarceration, the circuit court had the opportunity to correct it because only the Arkansas Department of Correction that could have determined any conditions of incarceration. Dillard v. State, 2012 Ark. App. 503 (2012).

Validity of Conditions.

Conditions for probation will be upheld if they bear a reasonable relationship to the crime committed or to future criminality; therefore, certain conditions imposed upon a defendant held valid; however, other conditions imposed upon defendant were held to be too broad, vague and insufficiently tailored to bear a reasonable relationship to probation/suspension objectives of rehabilitation and future criminality. Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985), cert. denied, Young v. Arkansas, 474 U.S. 1070, 106 S. Ct. 830 (1986).

In a case dealing with domestic offenses, although the jury was permitted to recommend an alternative sentence under § 16-97-101(4), 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 this section. Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006).

Written Notice.

Nothing in this section requires that the defendant be informed in writing that he is subject to a sentence greater than the probationary period imposed. Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ct. App. 1980).

Although this section requires that a defendant be given a written statement specifically setting forth the conditions of his suspended sentence, this procedural right, like any other, may be waived. Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987).

Subsection (e) did not apply where defendant's probation period was merely extended to allow her to pay the restitution at a rate she indicated that she could afford. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993).

The authority to enforce the terms of a suspended sentence is not itself a condition of the suspended sentence and is not required to be stated in writing. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993).

Defendant's suspended sentence could not be revoked when he never received any written conditions of his suspended sentence as required by this section. Zollicoffer v. State, 55 Ark. App. 166, 934 S.W.2d 939 (1996).

Revocation of the defendant's probation was not improper because he was not given written notice of the terms of probation in a 1998 order which superseded an original 1996 order of probation, since the defendant's probation was revoked on the basis of a violation of probationary terms contained in the 1996 probation order, which he acknowledged receiving. Morgan v. State, 72 Ark. App. 482, 37 S.W.3d 684 (2001).

Despite the fact that an order suspending defendant's sentence for theft of property and residential burglary did not specifically state that defendant was required to surrender to police on a certain date in order to serve jail time, the preponderance of the evidence showed that defendant's failure to report violated the provisions of the order that required good behavior and a law-abiding lifestyle; evidence showed that defendant was caught after leading police on a chase. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004).

Revocation of probation on forgery and battery charges was proper because probationer's signature on the documents listing the conditions of probation was sufficient to support the trial court's determination that the probationer had been provided the conditions, pursuant to subsection (g) of this section, and knew, understood, and consented to the conditions. Berry v. State, 2010 Ark. App. 217 (2010).

Trial court did not err in revoking defendant's probation because the conclusion that defendant received a written copy of the probation conditions, as required by subsections (a) and (e) of this section, was not clearly against the preponderance of evidence; defendant's probation officer testified that the officer explained the conditions of probation to defendant and that defendant signed a copy of the conditions. Lambert v. State, 2013 Ark. App. 64, 426 S.W.3d 478 (2013).

Defendant's suspended sentence was properly revoked for non-payment of restitution because his behavior relating to payment and his receipt of arrearage amount indicated that he was aware of amended amount of restitution, and defendant received notice of amended order via his attorney and was bound by his agent. Fleming v. State, 2013 Ark. App. 551 (2013).

Circuit court erred in revoking defendant's suspended sentence for failure to complete a community-service obligation because, while the conditions imposed upon her contained a duty to comply with all special conditions imposed by the court, no special conditions were noted in the order, and a subsequent contempt order did not clearly inform her that a new obligation or condition was added to her suspended sentence or that a failure to comply with that new condition could result in revocation. Blankenship v. State, 2014 Ark. App. 104 (2014).

Evidence was sufficient to show that defendant received the conditions of suspension that were expressly communicated in writing where he had signed the conditions document, acknowledged having received all of the other paperwork associated with his plea, and he neither contended that he was unaware of the conditions of his suspended sentence nor refuted a deputy's testimony about the sheriff's office's standard practices of giving copies of paperwork to anyone placed on probation or suspension. Geeslin v. State, 2017 Ark. App. 571, 533 S.W.3d 132 (2017).

Contrary to defendant's argument on appeal of the revocation of his suspended imposition of sentence, the requirement in subsection (e) of this section concerning a written statement is not an issue of subject-matter jurisdiction that can be raised at any time; instead, defendant waived the argument by not objecting on that basis at the revocation hearing. Gilbreth v. State, 2020 Ark. App. 86 (2020).

Cited: Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977); Cogburn v. State, 264 Ark. 173, 569 S.W.2d 658 (1978); Wolfe v. State, 266 Ark. 811, 586 S.W.2d 4 (Ct. App. 1979); Wolfe v. State, 266 Ark. 811, 586 S.W.2d 4 (Ct. App. 1979); Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983); Davis v. State, 291 Ark. 191, 723 S.W.2d 366 (1987); Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Myers v. State, 2014 Ark. App. 720, 451 S.W.3d 588 (2014).