Ark. Code Ann. § 5-4-304 (2026)

Research References

U. Ark. Little Rock L. Rev.

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

Survey of Legislation, 2005 Arkansas General Assembly, Criminal Law, 28 U. Ark. Little Rock L. Rev. 335.

Case Notes

Purpose.

This section was intended merely as an alternative method of sentencing, for § 5-4-301(d) 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).

This section was not intended as a limitation on the authority to enter a judgment of commitment to a term in the Department of Correction followed by a period of suspended imposition, but merely as a discretionary alternative to other authorized sentences. Smith v. State, 18 Ark. App. 152, 713 S.W.2d 241 (1986).

Applicability.

This section provides for the placing of a defendant in a county or city jail with conditions of probation, and does not apply to a term of imprisonment at the Department of Correction. Marion v. State, 4 Ark. App. 359, 631 S.W.2d 315 (1982).

This section has application only to those criminal defendants upon whom imposition of sentence is suspended entirely. Smith v. State, 18 Ark. App. 152, 713 S.W.2d 241 (1986).

Where defendant's crimes were committed prior to the effective date of subsection (c) of this section, its provisions were not applicable to defendant's probation revocation hearing; accordingly, the trial court committed error when it found that defendant had violated the terms of his probation and added an additional condition thereon because, after imposition of the original sentence, the court lost jurisdiction to amend or modify the sentence. Climer v. State, 80 Ark. App. 281, 95 S.W.3d 11 (2003).

Credit for Time Served.

Where a court of appeals was unable to find anything in the abstract of pleadings and testimony to indicate that a defendant had actually served the jail time to which he was sentenced as part of a suspended prison sentence, the court held that the defendant had not demonstrated his entitlement to credit for the time. Coleman v. State, 15 Ark. App. 5, 688 S.W.2d 313 (1985).

On direct appeal, a defendant could not raise the issue of the failure of the trial court to grant credit for time already served pursuant to subsection (a) where he failed to raise the issue in the trial court below; however, he could raise the issue in a petition filed with the circuit court under Ark. R. Crim. P. Rule 37. Morgan v. State, 73 Ark. App. 107, 42 S.W.3d 569 (2001).

Dual Judgments.

When a court grants unauthorized dual judgments of sentence and one is imposed and served, and the other is the suspension of a sentence, there is an election by operation of law and the sentencing court has elected to order the sentence actually imposed; the other is void. Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983).

Illegal Sentence.

Defendant's sentence was illegal because, as a condition of his probation, the court confined him to the county jail for a term in excess of that allowed by this section. Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991).

Defendant's sentence of 20 years imprisonment, suspended to an additional term of 20 years, pursuant to his guilty plea to one count of manufacturing methamphetamine, and two counts of possession of drug paraphernalia, was modified to provide that defendant was no longer required to report to a supervising officer, as the sentence was actually one of probation rather than suspension, which was a sentence specifically prohibited by statute. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).

Defendant's sentence was illegal where the version of this section effective when defendant committed the crime limited time served as a condition of probation to one hundred twenty days in confinement; the trial court erred in amending defendant's probation to include a year in a Regional Punishment Facility. Scissom v. State, 367 Ark. 368, 240 S.W.3d 100 (2006).

Upon revoking defendant's probation for the fraudulent use of a credit or debit card, the trial court sentenced defendant to 365 days' incarceration in accordance with subdivision (d)(1)(B) of this section and required her to attend a drug program. Because such a condition to incarceration was not authorized by § 5-4-104(d), the sentence was illegal. Runion v. State, 2012 Ark. App. 365 (2012).

In a probation revocation case, defendant's original sentence on a Class A misdemeanor was remanded for correction, because (1) the sentence was illegal on its face, as defendant was sentenced to both 20 days in jail and 12 months' probation and, contrary to subsection (a) of this section, the original sentencing order did not show that the 20 days' confinement was a condition of defendant's probation; and (2) the trial court failed to give defendant credit for the 20 days he was ordered to serve in the original order. Thompson v. State, 2017 Ark. App. 158, 516 S.W.3d 297 (2017).

Imprisonment and Probation or Suspension.

While it is true that § 5-4-104(e) provides that a defendant cannot be sentenced to a term of imprisonment to be followed by a period of probation otherwise than in accordance with this section, a court has the authority to sentence one to a term of imprisonment to be followed by a period of suspension. Smith v. State, 18 Ark. App. 152, 713 S.W.2d 241 (1986).

A trial court may not impose a sentence of imprisonment in the state Department of Correction that is followed by probation. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992).

Nothing in this section prohibited the trial court from revoking probation and imposing any sentence which might have originally been imposed; thus, defendant's sentence of 90 days in the county jail with 90 days credit as a period of confinement in the trial court's original order of probation did not preclude the court from ordering six years imprisonment following the state's second petition for revocation and a finding of guilt on the part of the defendant for violating his probation. Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002).

Trial court erred in imposing additional confinement as a condition of defendant's probation because subsection (d) of this section, which was in effect when the underlying offense was committed, did not allow additional time if a period of confinement had been included in the original order. Scissom v. State, 94 Ark. App. 452, 232 S.W.3d 502 (2006), aff'd in part, reversed in part, 367 Ark. 368, 240 S.W.3d 100 (2006).

Cited: Davis v. State, 291 Ark. 191, 723 S.W.2d 366 (1987); Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988); Lee v. State, 299 Ark. 187, 772 S.W.2d 324 (1989); Palmer v. State, 31 Ark. App. 97, 788 S.W.2d 248 (1990); Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Richie v. State, 2009 Ark. 602, 357 S.W.3d 909 (2009).