Ark. Code Ann. § 5-4-501 (2026)

Research References

ALR.

Construction and Application of U.S. Const. Art. I, § 10, cl. 1, and State Constitutional Provisions Proscribing State Bills of Attainder. 63 A.L.R.6th 1.

U. Ark. Little Rock L.J.

Legislation of the 1983 General Assembly, Criminal Law, 6 U. Ark. Little Rock L.J. 613.

Survey — Criminal Law, 11 U. Ark. Little Rock L.J. 175.

Case Notes

Constitutionality.

Defendant had no standing to challenge the ambiguity of subsection (d) of this section where he received the benefit of the more liberal of the two possible interpretations. Nahlen v. State, 330 Ark. 1, 953 S.W.2d 877 (1997).

This section is not unconstitutionally vague and does not violate the due process clause. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998).

There is a rational basis for enacting the enhancement provision in subsection (d) and, therefore, any perceived “conflict” between this section and any other statute allowing the jury to sentence to the same punishment does not create a constitutional violation. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).

The imposition of a life sentence under subsection (d) for aggravated robbery and theft of property did not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution or Ark. Const., Art. 2, § 9. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).

Subsection (d)(3), by which the legislature enacted a mandatory sentence, does not violate the separation of powers doctrine in either the federal or state constitutions and does not constitute a bill of attainder. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).

As the three-strikes law was in effect when defendant committed armed robbery and his life sentence was in accordance with that provision, that his prior convictions occurred before enactment of subsection (d) was immaterial. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004).

Trial court did not clearly err by rejecting appellant's constitutional challenge to this section as conclusory and unsupported by legal authority because there was no showing that Johnson v. United States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), was applicable to this section or that this section was unconstitutionally applied in appellant's case; appellant also did not demonstrate that appellate counsel was ineffective by failing to raise a meritless constitutional challenge on direct appeal. Wooten v. State, 2016 Ark. 376, 502 S.W.3d 503 (2016).

Unlike the federal statute addressed in Johnson v. United States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), the Arkansas habitual-offender statute does not contain a vague definition of what constitutes a “serious felony involving violence”; instead, the Arkansas statute clearly enumerates the specific crimes that fall within that definition. In any event, appellant's sentence was not enhanced based on the nature of the crime. Wooten v. State, 2016 Ark. 376, 502 S.W.3d 503 (2016).

Defendant failed to preserve his argument on appeal that the circuit court erred in sentencing him as an habitual offender based on conduct that occurred before the conviction that was used for enhancement purposes; while defendant specifically requested a ruling based on the due-process clauses of the state and federal constitutions, at no time did he assert to the circuit court that the application of the sentencing enhancement provisions violated the ex post facto clause of either constitution. Stover v. State, 2017 Ark. 66, 511 S.W.3d 333 (2017).

When a 2015 amendment to subdivision (d)(2) of this section included residential burglary in the list of crimes considered to be felonies involving violence, no ex post facto violation occurred even though defendant's convictions for residential burglary that were counted toward enhancement of his sentence occurred before the effective date of the amendment. Nothing in subdivision (d)(1) of this section limited counted violent felony convictions to those occurring after the effective date of the statute, appellant did not deny that he had committed four felonies that were now explicitly classified as violent felonies, and appellant was clearly on notice of the date the statutory change became effective. Handy v. State, 2017 Ark. App. 74, 510 S.W.3d 292 (2017).

When a 2015 amendment to subdivision (d)(2) of this section included residential burglary in the list of crimes considered to be felonies involving violence, no ex post facto violation occurred even though defendant's guilty pleas to residential burglary that were counted toward enhancement of his sentence occurred before the effective date of the amendment. Brigance v. State, 2018 Ark. App. 213, 548 S.W.3d 147 (2018).

In General.

This section does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishment and to furnish a guide for the court or jury in fixing the final punishment in event of conviction of the offense charged. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

Habitual criminal statute was not designed to act as a deterrent, but is simply a punitive statute, which provides in clear language that in an appropriate case, a prior conviction, regardless of the date of the crime, may be used to increase punishment. Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981); Hunter v. State, 8 Ark. App. 283, 653 S.W.2d 159 (1983); Spivey v. State, 25 Ark. App. 269, 757 S.W.2d 186 (1988).

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

Enhancement statute was not a distinct additional offense, but rather it provided a guide for the court or jury in fixing final punishment on the charged offense. Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002), cert. denied, Jones v. Arkansas, 536 U.S. 909, 122 S. Ct. 2366 (2002).

Purpose of the statute is to punish repeat offenders severely. Misenheimer v. State, 100 Ark. App. 189, 265 S.W.3d 764 (2007).

Construction.

Because § 16-90-803, although enacted at a later date, contains no repealing clause and does not conflict with this section, the state has the option of alleging specific habitual status in the information or simply charging the underlying offense. Mackey v. State, 56 Ark. App. 164, 939 S.W.2d 851, superseded, 329 Ark. 229, 947 S.W.2d 359 (1997).

This section, 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 § 5-4-103(a), providing that a jury is to fix punishment of one found guilty of a felony, because of the additional language of the latter that the jury is to fix punishment “as authorized by this chapter.” Ricks v. State, 327 Ark. 513, 940 S.W.2d 422 (1997).

This section is ambiguous: subdivision (d)(1) contains the words “separate and distinct prior occasions” but subdivision (d)(3)(A) does not, and each of those subdivisions purports to provide when the three-strikes enhancement applies. Nahlen v. State, 330 Ark. 1, 953 S.W.2d 877 (1997).

This section comes into play only upon a showing of “more than one” previous conviction of a felony. McDonald v. State, 266 Ark. 56, 582 S.W.2d 272 (1979).

Section 5-64-408, which was enacted after this section, does not preclude sentencing a habitual criminal under this section. When two punishment statutes exist, a court is not prevented from using the more stringent provision. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988).

The June 30, 1983, time limit is applicable only to the conviction being enhanced, and not to prior convictions being used for enhancement purposes. Spivey v. State, 25 Ark. App. 269, 757 S.W.2d 186 (1988).

The intent of the General Assembly was to apply Acts 1993, No. 550, § 7 to crimes committed by habitual offenders after June 30, 1993, thus coinciding with its effective date of July 1, 1993; to hold otherwise would risk disproportionate sentences being imposed on habitual offenders who committed crimes between 1983 and 1993, yet were sentenced pursuant to different versions of this section depending upon the date of trial. Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994).

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).

The General Assembly intended to apply the 1993 reduced sentencing guidelines to felonies committed after June 30, 1993; the reference to 1983 in subsection (a) was a drafting error. State v. Kinard, 319 Ark. 360, 891 S.W.2d 378 (1995); State v. Rodriques, 319 Ark. 366, 891 S.W.2d 63 (1995).

The date of the offense is immaterial to the application of subsection (d)(1), which permits enhancement for prior convictions with offenses committed subsequent to the charged offense. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001).

Defendant's sentence was not authorized under § 5-65-111(b)(4) because the the trial court used the habitual offender statute, § 5-4-501(a)(2)(F) in conjunction with the DWI sentencing enhancement provision; therefore, his sentence was properly modified from 15 to 10 years imprisonment. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003).

The appellate court presumed that, when amending this section in 1997, the legislature was fully aware of the Arkansas Supreme Court's interpretation of this section as requiring convictions arising from separate criminal acts, and that it was the legislature's intent to abandon this interpretation by omitting the “separate and distinct prior occasion” language. Benson v. State, 86 Ark. App. 154, 164 S.W.3d 495 (2004).

Court must give the words of the statute their ordinary meaning. Misenheimer v. State, 100 Ark. App. 189, 265 S.W.3d 764 (2007).

Statute is unambiguous. Misenheimer v. State, 100 Ark. App. 189, 265 S.W.3d 764 (2007).

Appeals.

Objections to the form of the information used to charge the defendant, to the introduction of a certified copy of a docket sheet to prove one of the defendant's prior felony convictions, and a claim of counsel's failure to object to the introduction of the docket sheet constitutes ineffective assistance of counsel could not be raised for the first time on appeal. Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986).

Petitioner held entitled to remand of case for an evidentiary hearing on his claims of ineffective assistance of counsel and improper sentencing under this section, though issues were not raised in his pro se petition. Ward v. Lockhart, 841 F.2d 844 (8th Cir. 1988).

While it is true that a defendant's right to due process of law requires that he receive notice prior to trial of the filing of an habitual offender charge, it is also true that a denial of any right, even a constitutional one, must be objected to at trial to be preserved for appeal. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

A bench-trial contemporaneous objection to challenge the existence of prior convictions to establish habitual offender status is required to preserve the issue for appeal. Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997).

Defendant's argument that the appellate court could address his habitual offender status on appeal because it involved an illegal sentence, rather than the sufficiency of the evidence supporting the trial court's finding that he was an habitual offender, was without merit; defendant's argument was not preserved for appellate review because he failed to object to the proof of his habitual offender status during his sentencing. Jones v. State, 83 Ark. App. 195, 119 S.W.3d 70 (2003).

Classification of Offense.

The enhancement provided for under this section is greater when § 5-64-401(c) is first applied to enhance the offense class. Prichard v. Lockhart, 990 F.2d 352 (8th Cir. 1993).

Convictions.

—In General.

Suspended sentences are still “convictions” within the meaning of the habitual criminal law. Reeves v. State, 263 Ark. 227, 564 S.W.2d 503 (1978), cert. denied, Reeves v. Arkansas, 439 U.S. 964, 99 S. Ct. 450, 58 L. Ed. 2d 422 (1978).

This section does not require that the defendant has previously been sentenced to serve a jail sentence; rather, it is enough if he has been found guilty and been put on probation. Campbell v. State, 264 Ark. 575, 572 S.W.2d 845 (1978).

Since subsection (b) refers to convictions rather than confinements, each conviction, which is one of two or more sentences which were served concurrently, must be counted separately in determining the sentence that may be imposed. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).

Where the state introduced certified copies of previous judgments for purposes of enhancing the defendant's sentence, even though one of the judgments reflected a different last name from that of the defendant, there was still substantial evidence to support the jury's finding that the defendant had suffered that conviction. Elmore v. State, 268 Ark. 225, 595 S.W.2d 218 (1980).

Where the information filed against the defendant merely alleged that the defendant had been convicted of “two or more” prior felonies, only two prior convictions could be admitted against the defendant for the purpose of increasing his sentence since only the prior convictions alleged can be used. Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980). But see Reed v. State, 282 Ark. 492, 669 S.W.2d 192 (1984).

Where there was evidence introduced at the trial that the defendant had been convicted and sentenced on three prior felony offenses, it is clear that defendant was correctly charged with having been convicted of “more than one” felony offense as provided in this section. Terry v. State, 271 Ark. 715, 610 S.W.2d 272 (1981).

Each plea of guilty to separate offenses constitutes a separate prior conviction for purposes of the habitual offender statute under subsection (b). Blackmon v. State, 272 Ark. 157, 612 S.W.2d 319 (1981); Knight v. State, 277 Ark. 213, 640 S.W.2d 442 (1982).

Where defendant had a prior felony conviction in another state and conviction for an offense which occurred prior to present offense, but conviction was entered subsequent to the present offense, the defendant should be subject to the harsher punishment of an habitual criminal under this section which applies to defendants who have been convicted of more than one but less than four previous felonies. Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981).

A court probation proceeding does not constitute either a “conviction” or “finding of guilt” under this section until the original guilty plea is finally accepted and therefore is inadmissible for sentence enhancement purposes in a subsequent prosecution. English v. State, 274 Ark. 304, 626 S.W.2d 191 (1981).

Where two of the prior convictions were for offenses committed prior to the commission of the instant offense, those convictions could be used to enhance the punishment even though the convictions were not obtained until after the commission of the instant offense. Hunter v. State, 8 Ark. App. 283, 653 S.W.2d 159 (1983).

Where evidence of three prior convictions were before the court, defendant's contention that charges in two of the convictions arose out of the same incident was of no consequence because there was clear evidence of two prior felony convictions before the court and there was no indication that defendant had been prejudiced by introduction of the convictions. Andrews v. State, 283 Ark. 297, 675 S.W.2d 636 (1984).

An amended information which alleged that the defendant had more than two prior convictions merely tracked the language of the sentence enhancement statute and did not limit the state to proving only two prior felonies. Reed v. State, 282 Ark. 492, 669 S.W.2d 192 (1984). But see, Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980).

The mere fact that some of the prior felony offenses may have been committed in one escapade does not necessarily make them one crime for purposes of enhancement of sentence as an habitual offender. Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985).

Even though a defendant's prior felony convictions were on appeal, they were final for purposes of enhancing his sentence as an habitual offender. Hill v. State, 13 Ark. App. 307, 683 S.W.2d 628 (1985).

Where the defendant had four prior felony convictions, the three concurrent 75-year terms of imprisonment for the three counts of delivery of controlled substances were not excessive. Parker v. State, 290 Ark. 94, 717 S.W.2d 197 (1986).

For purposes of sentence enhancement, a conviction is final when judgment is pronounced, and prior convictions on appeal may be used for sentence enhancement. Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987).

For purposes of this section, there is no distinction between “two or more” and “more than two”, or “four or more” and “more than four,” and if state alleges “four or more,” there is no limit to number which may be proven. But it would be error to allow the state to prove “four or more” priors when the information charges the defendant with only “two or more” felonies, because a more severe range of punishment for the offense is invoked when four or more priors are established. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987).

Trial court erroneously allowed four prior felony convictions to be admitted when information alleged only two or more prior convictions. Shells v. State, 22 Ark. App. 62, 733 S.W.2d 743 (1987).

Breaking and entering at three separate locations constitutes three separate offenses for the purpose of showing that a defendant has been convicted of more than one but less than four felonies and should have his sentence enhanced in accordance with subsection (a). Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989).

The fact that defendant was granted probation on prior convictions does not lessen the fact that they were convictions satisfying the criterion of subsection (a). Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989).

State's use of defendant's prior conviction to prove the first element of the crime of being in possession of a firearm, and its use of the same prior conviction to enhance defendant's punishment as an habitual offender did not constitute a prohibited form of double-counting. Woodson v. State, 302 Ark. 10, 786 S.W.2d 120 (1990).

Where evidence of prior offenses showed the entry of a plea of nolo contendere and indicated that the defendant was placed on five years statutory probation, but there was no indication in any of the documents that the court refused to accept the defendant's plea, formally or otherwise, defendant's probation was not the type of court probation which could be excluded from evidence on the basis that it did not involve a finding of guilt. Stevens v. State, 38 Ark. App. 209, 832 S.W.2d 275 (1992).

Trial court properly allowed enhancement of defendant's sentence under the Habitual Offenders Act where the record reflected that the defendant was found guilty by a jury of two offenses, sentenced to terms of imprisonment and that trial court entered a conviction judgment committing defendant to Arkansas Department of Correction. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996).

Trial court did not err in admitting certain of defendant's prior convictions for sentence-enhancement purposes where they occurred after the offenses in the present case, but defendant was convicted of them before his conviction in this case. Dodson v. State, 358 Ark. 372, 191 S.W.3d 511 (2004).

—Burglary.

Provision of this section that a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt is the only instance in the habitual offender act where the legislature specifically provided for two convictions to be treated as one, and the purpose of the provision seems clearly limited; accordingly, the argument that prior convictions arose from continuing course of conduct since the crimes occurred on the same day with the same victim and that, as they were not separate occurrences, the trial court should have considered them as only one conviction for the purpose of applying the habitual offender statute, was without merit. Wesson v. State, 5 Ark. App. 154, 633 S.W.2d 713 (1982).

Subsection (c) provides that a conviction of burglary and the felony that was the object of the burglary shall be considered a single felony conviction; the state legislature did not intend for any other convictions to merge for purposes of recidivist treatment. Glick v. Lockhart, 770 F.2d 737 (8th Cir. 1985), cert. denied, 474 U.S. 1084, 106 S. Ct. 857 (1986).

It was error to count a defendant's conviction of burglary and theft arising out of a single episode as separate offenses for purposes of enhancement as an habitual offender. Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985).

The General Assembly intended to treat convictions for breaking or entering the object of which was theft as a single felony for enhancement purposes under subsection (c) of this section. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993).

The term “burglary” in subsection (c) of this section includes the lesser included offense of breaking or entering, and breaking or entering and the object of that offense — in this case, theft — should be considered a single felony conviction for purposes of enhancing punishment. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993).

Where defendant was sentenced to an extended term of imprisonment as a habitual offender with more than one but less than four felony convictions under this section, the trial court erred by not merging his prior convictions for breaking or entering and for theft of property into a single felony conviction for enhancement purposes. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993).

—Invalidity.

Unless the records of prior convictions show that the defendant was represented by counsel, there is a presumption that the defendant was denied assistance of counsel and the convictions cannot be used to enhance punishment under recidivist statutes. Reeves v. Mabry, 480 F. Supp. 529 (W.D. Ark. 1979), aff'd, 615 F.2d 489 (8th Cir. 1980); Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989).

Where the testimony of the circuit clerk, which was supported by the docket sheet, showed that the plea of guilty was accepted by the court only after defendant had conferred with counsel, and where the intent of the court to appoint that counsel was clear, the failure to use the word “appoint” did not destroy the validity of the guilty plea. Reeves v. Mabry, 480 F. Supp. 529 (W.D. Ark. 1979), aff'd, 615 F.2d 489 (8th Cir. 1980).

A jury assessing punishment under a state habitual criminal statute may not constitutionally enhance punishment by reference to a previous conviction that had been obtained in violation of a constitutional right of the defendant, such as the right to counsel protected by the Sixth and Fourteenth Amendments to the Constitution of the United States; and, where a state court record reflects that a jury in imposing an enhanced term of imprisonment on a person convicted of being an habitual criminal considered or may have considered a constitutionally invalid prior conviction, the habitual criminal sentence that was imposed must generally be set aside and the case sent back to the sentencing court for appropriate proceedings. Reeves v. Mabry, 615 F.2d 489 (8th Cir. 1980).

Where in sentencing defendant, the statements of defendant following his arrest to a police officer giving a detailed account of prior felony convictions, and the use of the officer's testimony without evidence being offered as to whether or not defendant was represented by counsel on any of his prior convictions so as to possibly render them constitutionally infirm, clearly violated a substantial right of the defendant and constituted error under § 16-41-101, Rule 103, thus requiring a new trial. Addington v. State, 2 Ark. App. 7, 616 S.W.2d 742 (1981).

Where accused insisted that the state failed to show that he had been represented by counsel in his five prior convictions in another state, but the evidence indicated that the defendant's judgment and sentence forms clearly stated that the defendant had been represented by an attorney at all appearances, the prior foreign convictions were properly used for enhancement purposes. Knight v. State, 277 Ark. 213, 640 S.W.2d 442 (1982).

—Juvenile Adjudications.

A prior juvenile delinquency adjudication cannot be considered as a conviction for purposes of sentence enhancement as a habitual offender. Vanesch v. State, 70 Ark. App. 277, 16 S.W.3d 306 (2000).

—Misdemeanors.

A misdemeanor, no matter how frequent, should not be treated as a substitute for one of the predicate felony convictions used for habitual offender statutes. Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988).

Use of a felony, which would otherwise be only a misdemeanor and becomes a felony simply by virtue of its repetition (for example a conviction under § 5-65-111(b)(3)), for habitual offender purposes, is specifically condemned. Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988).

Legislature did not intend that the specific criminal enhancement statute for driving while intoxicated, § 5-65-111, should be coupled with this section, the general criminal enhancement statute, for the resulting purpose of creating a greater sentence than if either statute had been applied singly. Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988).

—Related Offenses.

Felony convictions for the related offenses of possession of a controlled substance under § 5-64-401 and possession of drug paraphernalia under § 5-64-403 fall under two separate statutes and are not considered one offense for the purposes of sentencing under this section. McCullough v. State, 44 Ark. App. 99, 866 S.W.2d 845 (1993).

Convictions for two drug offenses on the same day, while probably related, did not count as only one prior felony conviction for the purposes of sentence enhancement. Jackson v. State, 47 Ark. App. 86, 885 S.W.2d 303 (1994).

—Tried As Adult.

Defendant's habitual offender sentence to a term of life imprisonment was affirmed where he had committed two prior violent felonies as a minor but was tried as an adult, those prior convictions were properly admitted, and defendant and the State acknowledged that defendant would receive an automatic life sentence for being a “three striker” under this section. Price v. State, 2019 Ark. 323, 588 S.W.3d 1 (2019).

Cruel and Unusual Punishment.

Doubling a sentence for a person convicted twice for a drug-related offense is not cruel and unusual punishment. Pridgeon v. State, 266 Ark. 651, 587 S.W.2d 225 (1979).

Where defendant had prior felony convictions and was convicted of four separate counts of an offense, sentence was neither an abuse of discretion nor cruel and unusual punishment. Duncan v. State, 267 Ark. 41, 588 S.W.2d 432 (1979).

Double Jeopardy.

Application of this section does not constitute double jeopardy. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).

The state can use the defendant's prior felony convictions to convict him of felony in possession of a firearm and then use the same prior felony convictions to enhance the penalty for that conviction. The defendant was not convicted of two offenses which share the same elements, and thus he was not twice put in jeopardy for the same offense. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).

Effect of Amendments.

The 1993 amendment amends this section such that the minimum sentences for habitual offenders are equal to the minimum sentences for non-habitual offenders. State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993).

Impermissible Classifications.

Charges brought under the Habitual Offender Act based on an impermissible classification such as race would, of course, be unconstitutional. Beavers v. Lockhart, 755 F.2d 657 (8th Cir. 1985).

Information.

Amendment of an information to increase allegations from two to three prior felony convictions did not increase the statutory punishment range and did not result in prejudice sufficient to warrant a new trial. Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).

On remand of defendant's criminal conviction for aggravated robbery and felon in possession of a firearm, the state was permitted to a file an amended information alleging defendant's habitual-offender status pursuant to this section as defendant had been convicted of four counts of rape and one count of aggravated robbery in a separate case. Townsend v. State, 355 Ark. 248, 134 S.W.3d 545 (2003).

Even though a prosecutor was not allowed to amend a felony information under § 16-85-407 in a theft of property case to show the value of a vehicle stolen since that changed the class of the crime, there was no reversible error because the sentence imposed was less than the maximum for either the amended or the original charge. Therefore, defendant was not prejudiced. Ward v. State, 97 Ark. App. 294, 248 S.W.3d 489 (2007).

Circuit court did not err in sentencing defendant as a habitual offender because there was no error in the form of the amended felony information; the amended felony information incorporated by reference the charges included in the original information and quoted the habitual-offender statute, and that was sufficient to alert defendant to the fact that he could be sentenced as a habitual offender and that his prior convictions could be considered in assessing an enhanced sentence. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203 (2011).

There was no error in the timing of the amendment of the felony information because the amendment did not change the nature of the crime charged, and there was no basis for concluding that defendant was unfairly surprised by the state's amended felony information; prior to the filing of the amended felony information, defendant received a certified copy of the judgment and commitment order convicting him of three prior felonies. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203 (2011).

Defendant serving sentence for second-degree murder was not entitled to proceed on a writ of error coram nobis because (1) his claims that the information was not properly amended and that the sentence was therefore invalid were not extrinsic to the record and could have been made at trial, and (2) a claim of ineffective assistance of counsel for failure to object was not a ground for the writ. Rainer v. State, 2019 Ark. 42, 566 S.W.3d 462 (2019).

Instruction.

Where at least two prior convictions were admitted by a defendant, it was not error to refuse to instruct the jury with regard to the range of punishment if no such convictions were shown. Wilson v. State, 262 Ark. 339, 556 S.W.2d 657 (1977).

Where the state offered proof that the defendant in a capital felony murder case had been convicted of five prior felonies, two of which involved threats or violence, the trial court did not err in allowing the state to prove all five prior felonies where the court clearly instructed the jury that they were to consider only the two convictions involving threats or violence as aggravating circumstances and that the other convictions were to be considered only for enhancement purposes. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

Defendant was not prejudiced by jury instruction nor by his attorney's failure to object to the instruction which incorrectly stated the number of prior convictions required where the defendant testified he had been convicted of the number of convictions stated as required in the erroneous instruction. Grooms v. Lockhart, 919 F.2d 505 (8th Cir. 1990).

The sensible meaning of the habitual offender statute is to give the jury discretion to sentence only within the parameters set out in the statute; therefore, the statute does not permit an instruction of penalties under the non-habitual offender statute. McKillion v. State, 306 Ark. 511, 815 S.W.2d 936 (1991).

In defendant's drug case, the court erroneously instructed the jury regarding penalties in the sentencing phase where it allowed for the jury to consider only the possibility of imprisonment when defendant was an habitual offender; the court failed to give the jury the option of considering only the payment of a fine, as authorized by § 5-4-104(d)(3). Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2004).

Mandatory Sentences.

The minimum sentences for habitual offenders are mandatory. State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993).

The trial court exceeded its authority by ignoring the dictates of § 5-4-104(a) and by suspending imposition of five of six years contrary to the mandate of by subdivision (a)(4). State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993).

Sentencing under this section is mandatory, not optional. State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993).

The word “may” in this section indicates that the jury or the trial court, whichever is considering the sentence to be imposed, has only the discretion to sentence an accused within the range of punishment set out in the recidivist statute. State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993).

Notice of Charge.

Where defendant was on parole from former convictions, and had been advised during plea negotiations that habitual criminal charges would be filed, he was not in a position to complain of prejudice or allege surprise. Duke v. State, 266 Ark. 697, 587 S.W.2d 570 (1979).

The purpose of the requirement in habitual criminal cases that the state allege the previous offenses in the indictment is to afford the defendant notice and give him an opportunity to refute the charges. Reed v. State, 282 Ark. 492, 669 S.W.2d 192 (1984).

The defendant's argument that an allegation in an information of “more than two” prior convictions was too vague to inform a defendant adequately of the charge against him was without merit because the defendant was placed on notice by the amended information that he was being charged as an habitual offender with a minimum of three convictions. Reed v. State, 282 Ark. 492, 669 S.W.2d 192 (1984).

An amended information alleging two or more previous felony convictions put defendant on notice that he would have to defend at least two convictions. Stephens v. State, 15 Ark. App. 352, 693 S.W.2d 64 (1985).

Where defendant was put on notice that the state intended to make an amendment to the information to enhance defendant's punishment through the habitual offender statute, and the defendant was not surprised when the trial court allowed the information to be amended so as to allow for enhancement of his punishment upon conviction, it was not error for the state to amend its information, charging appellant as a habitual criminal, on the day of trial. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).

Proof.

A prior judgment of conviction, based on a guilty plea, for the purposes of this section, need not show the plea was freely and voluntarily made, since it is assumed that such was the case when the defendant was represented by an attorney, unless the contrary is shown. Brown v. State, 264 Ark. 248, 570 S.W.2d 251 (1978).

The burden was upon the prosecution to offer proof showing that the attending felonies were not the objects of their respective burglaries so as to constitute separate prior convictions and avoid the provisions of subsection (c). Steffen v. State, 267 Ark. 402, 590 S.W.2d 302 (1979).

The burden is on the prosecution to offer proof that the attending felony is not the object of the burglary and where no such proof was shown by the state, defendant's prior conviction of burglary and theft could only be counted as one offense and would not support an enhanced sentence. Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980); Walker v. Lockhart, 807 F.2d 136 (8th Cir. 1986).

A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980).

This section only requires proof of a prior conviction, not the underlying elements of the conviction. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

Where the defendant had three prior convictions in another state and all three convictions were punishable by imprisonment of a term in excess of one year, the evidence was sufficient to support the extended term under this habitual offender statute. McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986).

For the purpose of sentence enhancement, the state may prove a prior conviction by any evidence that satisfies the court beyond a reasonable doubt that the defendant was convicted or found guilty. Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989).

A record of a prior conviction may be used for enhanced sentencing purposes if the record of such conviction shows on its face that the accused was represented by counsel at the time of the plea. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993).

The state's failure to provide proof of the defendant's prior convictions during the sentencing phase required reversal of the court's finding that the defendant was a habitual offender. Mackey v. State, 56 Ark. App. 164, 939 S.W.2d 851, superseded, 329 Ark. 229, 947 S.W.2d 359 (1997).

Although the docket sheet did not reflect an entry of judgment, there was no error in allowing the admission of a certified copy of the trial court's docket notations reflecting a suspended sentence to help prove a prior conviction of a felony. Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997).

Propriety of Sentence.

Defendant's sentence was not illegal on its face; although she was given a sentence greater than the presumed one, her sentence was authorized pursuant to this section, which governs sentencing for habitual offenders. Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004).

Saline County court did not err in sentencing defendant as a habitual offender under subsection (b) of this section after defendant was convicted of felonies in Pulaski County where two days separated defendant's theft of a pick-up truck and defendant's crimes during a high-speed chase. Defendant's crimes involved multiple acts, harmed different people, and occurred at different locations in different counties. Misenheimer v. State, 100 Ark. App. 189, 265 S.W.3d 764 (2007).

Petitioner's 900-month prison sentence as a habitual offender for the offenses of aggravated robbery, theft of property, and two counts of second-degree battery was not illegal because the sentence was within the range provided in subdivision (b)(2)(A) of this section. Reed v. Hobbs, 2012 Ark. 61 (2012).

Trial court did not err in sentencing defendant to 30 years in prison as a habitual offender because defendant was convicted of four Class C felonies and one Class B felony, and therefore faced a maximum sentence of 160 years in prison as a habitual offender under subdivisions (b)(2)(C) and (D) of this section. Turner v. State, 2012 Ark. App. 150, 391 S.W.3d 358 (2012).

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 and this section—these statutes did not authorize the court to order a sex-offender treatment program. White v. State, 2012 Ark. 221, 408 S.W.3d 720 (2012).

Inmate's appeal of the denial of the inmate's petition to correct an illegal sentence, pursuant to § 16-90-111, was dismissed because (1) Ark. R. Crim. P. 37.2(b) said all postconviction relief grounds cognizable under Ark. R. Crim. P. 37.1 had to be raised in a Rule 37.1 petition filed within 90 days of the date of judgment when a defendant pled guilty, even though Ark. Code Ann. § 16-90-111 let a trial court correct an illegal sentence at any time, as the statute was superseded to the extent the statute conflicted with the Rule's time limits, (2) the petition was filed over six years after judgment was entered, (3) the time limits in Ark. R. Crim. P. 37.2 were jurisdictional, denying a trial court jurisdiction if the time limits were not met, and, on appeal, a reviewing court, and (4) the inmate's sentence was within the prescribed statutory ranges in subdivision (b)(2)(A) of this section and § 5-4-401(b)(1). Redus v. State, 2013 Ark. 9 (2013).

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 this section, the sentence was nonetheless illegal because under subdivision § 5-64-301(a)(2), 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).

Defendant was charged with only one crime: engaging in a continuing criminal enterprise under § 5-64-405, and although the State charged him as a habitual offender, habitual-offender status is not a separate crime or offense, and the sentence had to be modified accordingly. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Defendant's 10-year sentence for possession of a firearm by a felon was within the statutory range of punishment for a Class D felony committed by a defendant previously convicted of four or more felonies, and the circuit court's decision to run the sentence consecutively to defendant's other sentence was within the court's discretion. McNeely v. State, 2017 Ark. App. 483, 530 S.W.3d 876 (2017).

Defendant's claim that he was convicted of an offense for which he was not charged and that he had to be sentenced under subsection (a) of this section did not entitle him to proceed on a writ of error coram nobis; the notation concerning subsection (a) of this section on the judgment appeared to be a scrivener's error since the jury was instructed on subsection (c) of this section and the two prior convictions described in the information did not fall within the parameters of subsection (a) as one was for second-degree murder, and the factual basis for defendant's claims did not implicate the facial validity of the trial court's judgment or jurisdiction. Rainer v. State, 2019 Ark. 42, 566 S.W.3d 462 (2019).

Representation by Counsel.

A prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or he validly waived counsel. Mangiapane v. State, 46 Ark. App. 64, 46 Ark. App. 65, 876 S.W.2d 610 (1994).

Where the docket sheet in question included an express notation from which it could reasonably be inferred that counsel was appointed to represent defendant, and that that representation continued throughout the course of the proceedings since there was no entry showing that counsel had been dismissed, defendant's enhanced sentence was approved. Mangiapane v. State, 46 Ark. App. 64, 46 Ark. App. 65, 876 S.W.2d 610 (1994).

A prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or validly waived counsel. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).

Where the state had supplied the defendant with a “pen pack” for each prior conviction which did not reflect the defendant had an attorney in each case, but the docket entries showing representation were not supplied to defense counsel prior to the sentencing phase of trial, defendant's objection was meritless since the defense had been put on notice the state was going to ask for sentence enhancement because of the prior convictions and should have anticipated the pen pack's deficiency regarding prior representation being corrected. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).

A conviction cannot be used to enhance punishment under the recidivist statutes unless the records of prior convictions show that the defendant was represented by counsel or waived counsel. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

Handwritten notations on the docket sheet, stating that defendant had waived his right to counsel, were sufficient to allow the conviction to be used for enhancement purposes. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

Retrial.

Defendant could be tried as an habitual offender on retrial, even though his habitual offender status was not prosecuted in the first trial; raising the defendant's habitual offender status at the second trial did not constitute prosecutorial vindictiveness. Gardner v. State, 332 Ark. 33, 963 S.W.2d 590 (1998).

Where defendant was convicted of delivery of methamphetamine, defendant pled guilty to eight other felony drug charges during the pendency of his appeal; after his first case was reversed and remanded, the state did not err by using the felony convictions to amend the information to allege that defendant was subject to punishment as a habitual offender under this section. During defendant's new trial, the circuit court did not err in instructing the jury of defendant's habitual-offender status; defendant was clearly eligible for an enhanced sentence. Phavixay v. State, 2009 Ark. 452, 352 S.W.3d 311 (2009).

Role of Jury or Judge.

The judge and not the jury should determine whether a defendant is an habitual offender. Lovelace v. Lockhart, 765 F.2d 742 (8th Cir. 1985), cert. denied, 474 U.S. 1010, 106 S. Ct. 538 (1985).

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).

Sentences.

Sentence imposed was consistent with the language of this section. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).

Where sentence was erroneously enhanced on basis of prior conviction, such error did not mandate a new trial since Supreme Court could reduce the sentence in lieu of reversing and remanding for a new trial. Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980).

Where defendant successfully challenged the use of foreign convictions in enhancing his sentence, but never challenged Arkansas felony convictions introduced in evidence, and where, under the law in force at the time of his conviction, the minimum punishments under the recidivist statutes would have been imprisonment for 21 years and the circuit judge could have made the sentences for the two offenses run concurrently in order to make certain that defendant had not suffered any prejudice, his sentence would be reduced to 21 years. Klimas v. State, 271 Ark. 508, 609 S.W.2d 46 (1980).

Although the evidence was insufficient to support the finding that the defendant in a burglary prosecution had violated § 5-4-505 (repealed), resentencing the defendant was unnecessary where the sentence that the defendant had received was the minimum sentence he could have received under this section as an extended term of punishment. Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982).

Sentence of term of imprisonment and fine was within the range of sentences for a defendant convicted of a class B felony who had eight previous felony convictions. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).

The use of the word “may” in § 5-4-401 and this section does not mean that, in all habitual offender cases, the provisions of both sections are available and that the court is required to choose from those two statutes; the sentences for habitual offenders are governed by this section and the minimum sentences for habitual offenders are different than for persons who have not been convicted of two or more felonies. Rogers v. State, 10 Ark. App. 19, 660 S.W.2d 949 (1983).

Defendant charged with delivery of a controlled substance under § 5-64-401(a)(1)(i) and as an habitual offender under this section was subject to the range of sentences for class Y felonies under this section. Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987).

Trial court did not err in allowing prior felony convictions into evidence in sentencing phase of trial. Shells v. State, 22 Ark. App. 62, 733 S.W.2d 743 (1987).

There is no provision under Arkansas law or the United States Constitution which prohibits a sentence of a term of years which exceeds usual life span of human beings. Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987); Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990); Franklin v. State, 308 Ark. 539, 825 S.W.2d 263 (1992).

Sentence of “more than life” would be life without possibility of parole or death, the only penalties more severe than life in prison. Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987).

Defendant who was convicted of aggravated robbery and as an habitual offender was properly sentenced to 40 years imprisonment under subdivision (b)(1), since aggravated robbery is a Class Y felony and those provisions of § 5-12-103(c) (repealed) which contained enhancement provisions were repealed by Acts 1981, No. 620, § 13. Tippitt v. State, 294 Ark. 342, 742 S.W.2d 931 (1988).

The word “may” in this section does not mean the jury is permitted, but not required, to sentence defendant to twenty to forty years but that the jury may sentence the offender to any term of years between twenty and forty. Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990).

The court reduced the sentence for possession with intent to deliver cocaine from a term of sixty years to fifty years, the maximum term of years under subdivision (a)(7) of this section, in accordance with § 16-91-113(c)(3). Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).

A sentence of 300 years did not exceed life imprisonment since the only sentences greater than life would be life without parole and death. Franklin v. State, 308 Ark. 539, 825 S.W.2d 263 (1992).

Imposition of life sentence was proper where defendant was convicted of rape, a class Y felony, and with a record of four prior felonies, the range of his punishment was forty years to life imprisonment. Henderson v. State, 310 Ark. 287, 835 S.W.2d 865 (1992).

Sentence of “more than life” is defined as life without parole or death; therefore, two sentences of one hundred years each for two aggravated robbery convictions were within the statutory limits of subdivision (b)(1) and thus were not facially illegal. Claiborne v. State, 319 Ark. 537, 893 S.W.2d 324 (1995).

The court erred in reducing defendant's jury sentence from thirty to fifteen years where the jury's sentence was within the range of permissible sentences under this section. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267.

There was no double jeopardy violation where defendant was sentenced for violating both subdivision (a)(1)(i) of this section (possession with intent to deliver a controlled substance) and § 5-74-106 (simultaneous possession of drugs and firearms); the legislature made it clear that it wished to assess an additional penalty for simultaneously possessing drugs and a firearm. Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000).

Sentencing defendant under the specific provisions of § 5-26-305(b), which enhanced the offense to a Class D felony, and to also sentence him under this section, the general habitual offender statute, was impermissible and resulted in an illegal sentence of twelve years imprisonment that had to be corrected. Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003).

Trial court did not err in sentencing defendant, who was convicted of two counts of committing a terroristic act, to 30 years' imprisonment pursuant to the “three strikes” provision of subdivision (d)(1) of this section based on the fact that he had been convicted the previous month of three counts of aggravated robbery in an unrelated case. Benson v. State, 86 Ark. App. 154, 164 S.W.3d 495 (2004).

Because defendant pled guilty to a Class C felony as a habitual offender, the circuit court was required to sentence her in accordance with § 5-4-301(a)(2) and subdivision (a)(2)(D) of this section, 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).

In a case involving a habitual offender, a 15-year sentence imposed for felony weapon possession was illegal because the maximum sentence allowed under § 5-4-501(a)(2)(E) was 12 years. Ward v. State, 97 Ark. App. 294, 248 S.W.3d 489 (2007).

Circuit court erred in sentencing defendant under § 16-90-201 because the statute was repealed by implication with the enactment of this section, and the effect of sentencing defendant under § 16-90-201 was prejudicial since there was the possibility that the jury would have returned a sentence less than the minimum set forth in § 16-90-201; because sentencing had to be determined by the law in effect at the time of the commission of a crime, defendant was entitled to a jury instruction in accordance with this section, the Criminal Code's habitual-offender statute. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203 (2011).

General Assembly clearly took up the subject matter of the enhanced sentencing of habitual offenders anew in this section, the more current statute, and the conflict between § 16-90-201 and this section is irreconcilable, resulting in a repeal by implication of § 16-90-201; a plain reading of this section and § 16-90-201 makes clear that this section is the more comprehensive statute, covering the same subject matter as § 16-90-201 as well as including additional provisions to provide for the sentencing of habitual offenders who are convicted of serious and violent felonies, and it is further evident that the two statutes cannot be read together harmoniously, as the two statutes cannot be read together harmoniously, as the sentencing ranges prescribed by each statute conflict. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203 (2011).

Defendant's sentence was proper under §§ 5-4-501 to 5-4-504 because the reference, “Attorney: Public Defender,” was sufficient to prove that defendant was represented by counsel regarding his Illinois conviction for aggravated robbery. There was no supplemental testimony explaining the reference, but it was clear that a “public defender” could only reasonably reference representation for defendant; thus, the designated reference in the pen pack was sufficient to satisfy the state's burden in the case. Anthony v. State, 2011 Ark. App. 660 (2011).

Denial of writ of habeas corpus was proper, because life imprisonment for aggravated robbery was within the statutory range, irrespective of any enhancement as a habitual offender, and a sentence that was within the prescribed range was not illegal. Goins v. Norris, 2012 Ark. 192 (2012).

In an aggravated robbery case where habitual offender status was at issue, a trial court did not err by refusing to give the jury an instruction on the sentences that appellant had received in federal court for prior bank robbery convictions because it was within the trial court's discretion to do so, pursuant to § 16-97-103(2). Walden v. State, 2012 Ark. App. 307, 419 S.W.3d 739 (2012).

In an aggravated robbery case, an issue relating to a motion for a new trial was preserved for appellate review because an oral motion prior to the entry of the judgment and commitment order was made in open court, the state was aware that the motion had been made, and the state was given an opportunity to respond. However, because appellant received a sentence within the statutory range short of the maximum, he was not prejudiced by an victim-impact statement, and a new trial was not warranted; appellant received a 60-year term of imprisonment, but the maximum he could have received was life in prison. Walden v. State, 2012 Ark. App. 307, 419 S.W.3d 739 (2012).

Defendant originally pleaded guilty and was sentenced as a habitual offender, despite the failure of the judgment to indicate that fact; the circuit court was free to correct a clerical error to have the judgment speak the truth, and thus defendant was not illegally sentenced. Heard v. State, 2014 Ark. App. 674 (2014).

Defendant's sentence was affirmed because defendant could not challenge his prior convictions used for enhancement purposes for the first time on appeal, his sentence was within the permissible statutory range for a defendant convicted of a Class C felony who had four or more prior felony convictions, and defendant's argument that the State did not prove that he was represented by counsel in each of those convictions was not preserved for appellate review where it was not previously raised. Slater v. State, 2015 Ark. App. 94 (2015).

Defendant's sentence on the sexual indecency conviction was illegal to the extent it exceeded 12 years. McMullin v. State, 2016 Ark. App. 181, 486 S.W.3d 818 (2016).

Defendant was charged as a habitual offender, having been previously convicted of four felonies, and the jury convicted him of a Class D felony for possessing a usable amount of cocaine, and thus the jury could have imposed punishment within a range of zero years to not more than 15 years in prison; the circuit court explicitly considered defendant's criminal history and determined that an alternative sentence of probation would not be appropriate, and this was not an abuse of discretion, but an exercise of it. Wells v. State, 2017 Ark. App. 174, 518 S.W.3d 106 (2017).

Because defendant received 40 years on each count of threatening a judicial officer, as enhanced under this section, the sentence was above the statutory range and therefore illegal. Defendant's sentence for first-degree terroristic threatening also was facially illegal. Radford v. State, 2018 Ark. App. 89, 538 S.W.3d 894 (2018).

Trial court expressly accepted defendant's no-contest plea to domestic battery in the second degree after a lengthy discussion, and because the trial court accepted the plea, it was within the trial court's discretion to determine whether it would allow defendant to withdraw his plea; defendant failed to show that the trial court abused its discretion by not allowing him to withdraw his plea after entry or that a manifest injustice occurred when the trial court increased his active sentence from the 3 years in the agreement to 12 years and then to 20 years because the trial court was within its authority to sentence him under this section. Lee v. State, 2018 Ark. App. 116, 544 S.W.3d 71 (2018).

Petitioner's appeal of the order dismissing his pro se petition for a writ of habeas corpus was dismissed because his concurrent sentences fell within the maximum sentences allowed under the law at the time the offenses were committed and therefore were not illegal on the face of the judgment and there was no showing that the trial court lacked jurisdiction. Johnson v. Kelley, 2019 Ark. 230, 577 S.W.3d 710 (2019).

Waiver.

Where a defendant sentenced as an habitual offender objected to his sentence based upon the fact that no showing was made that he was represented by counsel in the underlying misdemeanor convictions used to advance the conviction to a felony, failed to adduce proof at trial to show lack of representation and also did not raise the issue, any procedural error upon which reversal might be based was waived by his failure to assert it. Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985).

Where defendant argued in the trial court that his two prior convictions for rape and kidnapping should count as one offense because they occurred on the same date, defendant waived his right to raise the new claim on appeal that the two offenses should count as one because the state had not shown that the force used to commit the kidnapping did not exceed that needed to commit the rape; however, the trial court erred in sentencing defendant to life without parole because defendant was eligible for parole under § 16-93-1302. Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002).

Because defendant expressly waived presentation of proof as to both charges and the enhancement, the circuit court's denial of his petition to correct an illegal sentence under § 16-90-111 was not clearly erroneous; the circuit court had found that defendant entered a negotiated plea of nolo contendere to false imprisonment and manslaughter, pleaded to the manslaughter charge as a habitual offender, and waived the presentation of proof and evidence as to the charges to which he was eventually sentenced as well as the enhancement of the charges. Johnson v. State, 2019 Ark. App. 68, 571 S.W.3d 519 (2019).

Cited: Wilson v. State, 261 Ark. 820, 552 S.W.2d 223 (1977); Thomas v. State, 262 Ark. 79, 553 S.W.2d 32 (1977); Houston v. State, 263 Ark. 607, 566 S.W.2d 403 (1978); Brown v. State, 264 Ark. 248, 570 S.W.2d 251 (1978); Taylor v. Mabry, 593 F.2d 318 (8th Cir. 1979); Cox v. Hutto, 476 F. Supp. 906 (E.D. Ark. 1979); Hixson v. State, 266 Ark. 778, 587 S.W.2d 70 (1979); Cox v. Hutto, 619 F.2d 731 (8th Cir. 1980); Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980); Jones v. State, 270 Ark. 328, 605 S.W.2d 7 (1980); Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980); Shelton v. State, 271 Ark. 342, 609 S.W.2d 18 (1980); Hixson v. Housewright, 642 F.2d 242 (8th Cir. 1981); Morrow v. State, 271 Ark. 806, 610 S.W.2d 878; Loane v. State, 271 Ark. 797, 611 S.W.2d 190 (1981); Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981); Thorne v. State, 274 Ark. 102, 622 S.W.2d 178 (1981); Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981); Thomas v. State, 2 Ark. App. 238, 620 S.W.2d 300 (1981); Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982); Griffin v. State, 276 Ark. 266, 633 S.W.2d 708 (1982); Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982); Harris v. State, 6 Ark. App. 89, 638 S.W.2d 698 (1982); Stocker v. State, 280 Ark. 450, 658 S.W.2d 879 (1983); Johnson v. Lockhart, 746 F.2d 1367 (8th Cir. 1984); Glenn v. State, 281 Ark. 454, 664 S.W.2d 868 (1984); Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984); McDonald v. State, 284 Ark. 201, 680 S.W.2d 703 (1984); Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984); Mitchell v. State, 12 Ark. App. 263, 675 S.W.2d 373 (1984); Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984); Lawrence v. Lockhart, 767 F.2d 449 (8th Cir. 1985); Schwindling v. Smith, 777 F.2d 431 (8th Cir. 1985); Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985); Neely v. State, 18 Ark. App. 122, 711 S.W.2d 482 (1986); Murdock v. State, 18 Ark. App. 228, 712 S.W.2d 321 (1986); Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986); Denton v. State, 290 Ark. 24, 716 S.W.2d 198 (1986); Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986); Leggins v. Lockhart, 649 F. Supp. 894 (E.D. Ark. 1986); Nelson v. Lockhart, 828 F.2d 446 (8th Cir. 1987); Shockley v. State, 291 Ark. 251, 724 S.W.2d 156 (1987); Williams v. State, 22 Ark. App. 253, 739 S.W.2d 174 (1987); Smith v. Lockhart, 882 F.2d 331 (8th Cir. 1989); Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989); Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990); Cranford v. State, 303 Ark. 393, 797 S.W.2d 442 (1990); Johnson v. Lockhart, 921 F.2d 796 (8th Cir. 1990); Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991); Evans v. State, 310 Ark. 397, 836 S.W.2d 384 (1992); Talley v. State, 312 Ark. 271, 849 S.W.2d 493 (1993); Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993); Terry v. Endell, 32 F.3d 325 (8th Cir. 1994); Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Wright v. State, 327 Ark. 455, 939 S.W.2d 835 (1997); Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999); Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001); Coleman v. State, 2017 Ark. 218 (2017).