Ark. Code Ann. § 5-4-404 (2026)
Credit for time spent in custody
If a defendant is held in custody for conduct that results in a sentence to imprisonment or confinement as a condition of suspension or probation, the court, the Division of Correction, or the Division of Community Correction shall credit the time spent in custody against the sentence, including time spent in a local jail facility awaiting transfer to the Division of Correction or the Division of Community Correction.
History. Acts 1975, No. 280, § 904; A.S.A. 1947, § 41-904; Acts 2001, No. 1034, § 1; 2019, No. 910, § 658.
Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” twice and “Division of Community Correction” for “Department of Community Correction” twice.
Research References
ALR.
Defendant's Right to Credit for Time Spent in Halfway House, Rehabilitation Center, or Similar Restrictive Environment as Condition of Pretrial Release. 46 A.L.R.6th 63.
Case Notes
Entitlement to Credit.
Defendant was held entitled to credit for the number of days spent in jail from the date of his arrest on an alias warrant to the date of his conviction. Hodges v. State, 267 Ark. 1112, 593 S.W.2d 494 (Ct. App. 1980).
Jail time credit is appropriate when a defendant's pretrial incarceration is due to his inability to make bail, but is inappropriate for time served in connection with wholly unrelated charges based on conduct other than for which the defendant is ultimately sentenced. Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).
Defendant should have received credit on his revoked suspended sentence for the days he spent in custody awaiting trial on another charge that resulted in a suspended sentence but was not entitled to credit for jail time spent for the crime underlying the revocation of the suspended sentence. Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).
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); Humphrey v. State, 300 Ark. 383, 779 S.W.2d 530 (1989).
This section provides for jail time credit against sentence where pretrial incarceration was imposed due to conduct that resulted in conviction and sentence. Defendant was not entitled to credit for jail time served as a fugitive while awaiting return to Arkansas. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).
A defendant is not entitled to jail credit on a subsequent sentence for time spent in jail on a parole revocation, even if the parole revocation results from the crime for which he receives a subsequent sentence. Wilson v. State, 56 Ark. App. 47, 939 S.W.2d 313 (1997).
Time spent enrolled in an electronic monitoring program is not time spent “in custody” for purposes of the statute; time spent “in custody” under the statute is available only to those persons who remain in the custody of a penal institution. Bush v. State, 338 Ark. 772, 2 S.W.3d 761 (1999).
Where appellant did not complete drug court, he was required to serve a six-year sentence for forgery and a ten-year suspended sentence for theft. Under § 5-4-404, he was entitled to 53 days credit for the time he spent in jail before he entered drug court; appellant was not entitled to credit for the time that his case was in drug court. Laxton v. State, 99 Ark. App. 1, 256 S.W.3d 518 (2007).
Defendant was not entitled to jail-time credit for confinement under this section, because he served time in confinement as a condition of probation, not from being held in custody as a matter of pretrial incarceration. Burgess v. State, 2016 Ark. 175, 490 S.W.3d 645 (2016).
Defendant was not entitled to more jail time credit because he was essentially asking for his jail time to be counted twice when he asked that an additional 394 days of the same jail time credit be applied to his sentence for the initial charges; regardless of whether the jail time from defendant's initial arrest until his sentencing on the subsequent charges applied against his sentence, the time could not be applied against both sentences. Hanley v. State, 2017 Ark. App. 583, 535 S.W.3d 276 (2017).
Defendant did not demonstrate that he was entitled to an additional 100 days of jail-time credit; however, defendant was entitled to an additional 50 days' jail-time credit, which was the number of days between the date of his original arrest and the date he signed the terms and conditions of probation. Howard v. State, 2019 Ark. App. 604 (2019).
Trial court did not err in denying defendant's claim for additional jail-time credit against his murder conviction for the period of time after defendant's bond was revoked on the murder charge when he was arrested on possession charges. This section does not address how jail-time credits are to be allocated or attributed between multiple convictions, defendant was sentenced on multiple convictions, and defendant offered no persuasive authority that the trial court erred. Bailey v. State, 2019 Ark. App. 53, 571 S.W.3d 21 (2019).
Guilty Pleas.
Where appellant pleaded guilty to aggravated robbery, forgery, criminal mischief, and battery, Ark. R. App. P. Crim. 1 did not permit him to appeal the denial of jail-time credit under this section because it was an integral part of the acceptance of appellant's guilty plea. Kennedy v. State, 2013 Ark. App. 140 (2013).
Preservation for Review.
Because defendant did not request jail-time credit below, either directly or in an Ark. R. Crim. P. 37 petition, his claim was not properly preserved and could not be raised for the first time on appeal. Weatherford v. State, 2019 Ark. App. 536, 590 S.W.3d 172 (2019).
Even though defendant claimed his sentence was illegal, and could be raised for the first time on appeal because the circuit court's failure to award jail-time credit would require him to serve more than the maximum amount of time designated in the statutes for his offenses, defendant's sentence was not illegal on its face because the sentence was within the maximum prescribed by law; instead, a complaint for jail-time credit is a request for modification of a sentence imposed in an illegal manner. Weatherford v. State, 2019 Ark. App. 536, 590 S.W.3d 172 (2019).
Although defendant did not articulate a specific amount of jail-time credit in the lower court, his argument on appeal was preserved because he did motion the lower court for jail-time credit. Howard v. State, 2019 Ark. App. 604 (2019).
Unrelated Charges.
Where the defendant was incarcerated in another state because he was a fugitive from justice in this state and he had committed other crimes in the other state, the reasons for incarceration in the other state were wholly unrelated to the conduct that resulted in the defendant's sentence in this state; consequently, the defendant could not receive any credit for the period of time that he was incarcerated in the other state. Cox v. State, 288 Ark. 300, 705 S.W.2d 1 (1986), superseded by statute as stated in, Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990).
The defendant was not entitled to credit for time in jail for an unrelated charge. McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986); Travis v. State, 292 Ark. 463, 730 S.W.2d 501 (1987); Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990), rehearing denied, , 1990 Ark. LEXIS 287.
Cited: Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979); Carey v. State, 268 Ark. 332, 596 S.W.2d 688 (1980); Elliott v. State, 268 Ark. 454, 597 S.W.2d 76 (1980); Walters v. State, 267 Ark. 155, 621 S.W.2d 468 (1979); Griffin v. State, 2 Ark. App. 145, 617 S.W.2d 21 (1981); Hughes v. State, 3 Ark. App. 275, 625 S.W.2d 547 (1981); Hughes v. State, 281 Ark. 428, 664 S.W.2d 471 (1984); Travis v. Lockhart, 925 F.2d 1095 (8th Cir. 1991).
Subchapter 5 — Extended Term of Imprisonment
Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.
Effective Dates. Acts 1983, No. 409, § 6: July 1, 1983. Emergency clause provided: “It is hereby determined by the General Assembly that certain criminal sentencing statutes are in need of immediate clarification for the more efficient administration of justice in this State. Therefore, an emergency is hereby declared to exist, and this Act, being necessary for the preservation of the public peace, health and safety, shall be in full force and effect from and after July 1, 1983.”
Acts 1993, Nos. 532 and 550, § 13: Mar. 16, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the sentencing policies and standards of the State of Arkansas are in need of immediate reform in order to better provide for a balanced correctional system and to better effectuate the rehabilitation of persons convicted of crimes and to make possible their return as useful members of the community and passage of this act is necessary to facilitate these reforms. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect, unless provided for otherwise herein, from and after its passage and approval.”
Acts 2015, No. 895, § 49: Apr. 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that prison overcrowding is one of the largest problems currently burdening the state both from a public safety and budgetary standpoint; that safe and effective measures are needed to immediately combat this problem; and that this act is immediately necessary because in the interests of public safety and the state budget the Department of Correction, Department of Community Correction, Department of Human Services, and the Parole Board should be allowed to immediately implement these new measures. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”
Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.
Research References
ALR.
Statute or ordinance mandating imprisonment for habitual or repeated offender. 2 A.L.R.4th 618.
Using single prior felony conviction as basis for offense of possessing weapon by convicted felon and to enhance sentence. 37 A.L.R.4th 1168.
Am. Jur. 39 Am. Jur. 2d, Habit. Crim., § 19 et seq.
Ark. L. Rev.
Griffin, Case Notes: Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604: The Relationship Between Prosecutorial Discretion and Vindictiveness in Plea Bargaining, 33 Ark. L. Rev. 211.
Note, Helm v. Solem: Can a Prison Sentence Constitute Cruel and Unusual Punishment?, 36 Ark. L. Rev. 673.
Notes, Shockley v. State: The Constitutionality of the Arkansas Habitual Offender Determination Procedure, 39 Ark. L. Rev. 553.
Note, Conley v. State: Mitigation Before Guilt, 45 Ark. L. Rev. 995.
C.J.S. 24 C.J.S., Crim. L., § 1638 et seq.
U. Ark. Little Rock L.J.
Survey of Arkansas Law, Criminal Law, 5 U. Ark. Little Rock L.J. 115.
Case Notes
Purpose.
The obvious intent of this subchapter is to enhance punishment of a party who has a habit of criminal conduct. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).
The legislature intended the focus of this subchapter to be on prior convictions, not on prior sentences. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993).
This subchapter was not designed to act as a deterrent but as a punitive statute which provides that, in appropriate cases, a prior conviction, regardless of the date of the crime, may be used to increase punishment. Jackson v. State, 47 Ark. App. 86, 885 S.W.2d 303 (1994).
Applicability.
The General Assembly did not intend the new, reduced sentences in the 1993 amendment to apply to felonies committed after June 30, 1983, but to make them applicable to felonies committed after June 30, 1993. State v. Dennis, 318 Ark. 80, 883 S.W.2d 811 (1994); State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994).
Information.
The trial court properly allowed the prosecutor to amend the information to charge defendant as a habitual offender after the conclusion of plea negotiations. Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995).
Jury Trial.
Defendant's right to a trial by jury was not unduly encumbered by the Habitual Offender Act. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993).
Single Criminal Act.
To utilize prior convictions arising from one single act to enhance punishment pursuant to the Habitual Offender Act contravenes fundamental fairness and due process. Simply put, there is nothing habitual about the commission of a single criminal act resulting in multiple charges and convictions. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).
Cited: Leggins v. Lockhart, 822 F.2d 764 (8th Cir. 1987); Adams v. State, 314 Ark. 431, 863 S.W.2d 285 (1993); McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998).