Ark. Code Ann. § 5-4-502 (2026)

Case Notes

Constitutionality.

This section is not unconstitutional under Ark. Const., Art. 7, § 23, since the number of prior felony convictions of the defendant is a matter of law and not a question of fact. Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984).

Construction.

Section 16-90-205 and this section both address the bifurcated procedure for trials involving habitual criminals; Title 16 addresses judgment and sentencing generally, and this title addresses disposition of offenders. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994).

Although § 16-90-205 contains a provision which states “nothing in this subdivision shall prohibit cross-examination of a defendant as to previous convictions when the defendant takes the stand in his own defense,” this section does not contain a corresponding provision. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994).

Purpose.

The habitual criminal statute was not designed to act as a deterrent but as a punitive statute that provides, in an appropriate case, that a prior conviction, regardless of the date of the crime, may be used to increase punishment. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

Applicability.

This section is inapplicable to the Omnibus Driving While Intoxicated Act. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985).

This section is not inapplicable in bench trials even though it refers only to a jury. State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993).

Bifurcated Trial.

The trial of an habitual offender is bifurcated only to protect the defendant by withholding proof of his earlier convictions until the jury has found him guilty, and the sole purpose of the second stage is to allow the jury to consider possible enhancement of the sentence, not its reduction. Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981) (decision prior to 1981 amendment).

Purpose of bifurcated process is to protect defendant by withholding proof of his prior convictions until jury has found him guilty. Bifurcated procedure should be followed in cases where it applies, even where prior convictions are an element of offense charged; however, this protection must be balanced with state's entitlement to prove all elements of an offense. Tatum v. State, 21 Ark. App. 237, 731 S.W.2d 227 (1987).

The General Assembly intended for the procedure in this section to apply in jury trials and, in doing so, to provide for bifurcated trials to protect the defendant by withholding proof of his earlier convictions until the jury has found him guilty. State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993).

The bifurcated procedures outlined in §§ 16-97-101 — 16-97-104 are applicable to cases involving an alleged habitual offender; it was not error under this section to allow testimony and argument during the sentencing phase. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995).

Compliance.

Where certified copies of judgments showing that defendant had pled guilty to prior offenses were placed in the record, there was, if not a literal compliance with the requirements of subdivision (2), certainly a substantial compliance. Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984).

The correct statutory procedure in a bifurcated trial is, after a finding of guilt, for the trial court to hold a hearing, out of the presence of the jury, to determine the number of prior convictions and then to instruct the jury as to the number to be considered by them in fixing the punishment. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986).

Trial judge in a bench trial had the authority to enhance defendant's sentence. Adams v. State, 2014 Ark. App. 308, 435 S.W.3d 520 (2014).

Defendant's Evidence.

There is no indication in this section of a legislative intention to permit a habitual offender to introduce any evidence during the second stage of the trial except proof to rebut the evidence of previous convictions. Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981) (decision prior to 1981 amendment).

Where the prosecution presented certified copies of prior foreign felony convictions, the defendant was not entitled to present testimony that he was actually innocent of the crimes and had pleaded guilty on the advice of counsel since this section does not give a defendant the right to argue his innocence at a later date when he has conceded that he pleaded guilty to each of the prior felonies. Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981) (decision prior to 1981 amendment).

Failure of trial court to allow defendant to present claim that he pled guilty to prior felonies on advice of counsel but that he was actually innocent of the charges was not a violation of U.S. Const., Amend. 6 since a claim of innocence of the crimes charged alone does nothing to detract from the validity of a guilty plea. Harris v. Lockhart, 743 F.2d 619 (8th Cir. 1984).

Although the trial court commented to the jury that the defendant's prior convictions in another state rendered the defendant infamous, which was further evidence the jury could consider in determining whether the prior convictions were felonies, the comment was not cause for reversal. First, the defendant had no right to have a jury decide the issue; therefore, the defendant could not show any prejudice by the comment to the jury. Second, the issue of the number of prior convictions is a matter of law, not fact; thus, the prohibition against commenting on a factual issue, in Ark. Const., Art. 7, § 23, did not apply. McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986).

It is not mandatory that the jury know the nature, time, and place of the previous felonies; that is a matter of discretion with the trial court. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986).

The trial court is under no duty to sua sponte inform the jury of the nature of the previous convictions and the dates and places thereof in the absence of a request for such information by the parties or the jury. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986).

The purpose of the procedure set forth in subdivision (2) of this section was to enable the court to determine the number of prior convictions the jury might consider in the sentencing phase, the section does not provide that the hearing be held before the jury. It provides exactly the opposite. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).

Evidence.

Both § 16-90-205 and this section provide that evidence of prior convictions shall not be considered until after the defendant is found guilty. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994).

The introduction of a prior criminal conviction is not forbidden during the guilt/innocence phase of a bifurcated trial. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994).

Guilty Pleas.

Each plea of guilty to each offense is considered as a separate and previous conviction, even though concurrent sentences are imposed, under the habitual offender statutes; a defendant's claim of innocence with respect to some of the established prior convictions is irrelevant. Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982).

Instruction.

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).

Proof.

Even though the defendant may controvert evidence of his previous felony convictions and offer evidence to rebut the state's evidence, the burden remains on the state to prove such connections beyond a reasonable doubt. Leggins v. State, 267 Ark. 293, 590 S.W.2d 22 (1979).

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).

The trial court erred in allowing the jury to take copies of defendant's prior convictions into the deliberation room because such material is not introduced into evidence to be considered by the jury. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986).

Trial court permitted improper introduction of evidence of prior convictions. Costillo v. State, 292 Ark. 43, 728 S.W.2d 153 (1987), overruled, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

For purposes of sentence enhancement, prior convictions are proven by judgments during the punishment phase of the trial. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988).

Stipulations.

Stipulation as to the existence of prior convictions did not deprive defendant of due process of law nor was his right to have the state prove the prior offenses and his right to rebut that proof waived. Morrow v. State, 271 Ark. 806, 610 S.W.2d 878, cert. denied, 454 U.S. 819, 102 S. Ct. 99, 70 L. Ed. 2d 89 (1981).

Cited: Klimas v. Mabry, 599 F.2d 842 (8th Cir. 1979); Duncan v. State, 267 Ark. 41, 588 S.W.2d 432 (1979); Cox v. Hutto, 619 F.2d 731 (8th Cir. 1980); Lingo v. State, 271 Ark. 776, 610 S.W.2d 580 (1981); Price v. State, 276 Ark. 80, 632 S.W.2d 429 (1982); Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982); Hunter v. State, 280 Ark. 307, 657 S.W.2d 543 (1983); Taylor v. State, 9 Ark. App. 286, 658 S.W.2d 432 (1983); Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984); Beavers v. Lockhart, 755 F.2d 657 (8th Cir. 1985); Nelson v. Lockhart, 641 F. Supp. 174 (E.D. Ark. 1986); Nelson v. Lockhart, 828 F.2d 446 (8th Cir. 1987); Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987); Ward v. Lockhart, 841 F.2d 844 (8th Cir. 1988); Prichard v. State, 300 Ark. 10, 775 S.W.2d 898 (1989); Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991); Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991); Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955 (1993); Benton v. State, 41 Ark. App. 167, 850 S.W.2d 36 (1993); Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994); Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996); Lockhart v. State, — Ark. —, — S.W.3d —, 2005 Ark. LEXIS 707 (Nov. 10, 2005); Whitson v. State, 2014 Ark. App. 283 (2014).