Ark. Code Ann. § 5-4-504 (2026)
Habitual offenders — Proof of previous conviction
- A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty.
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Any of the following are sufficient to support a finding of a prior conviction or finding of guilt:
- A certified copy of the record of a previous conviction or finding of guilt by a court of record;
- A certificate of the warden or other chief officer of a correctional institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant as the name and fingerprints appear in the records of the warden's or other chief officer's office; or
- A certificate of the chief custodian of the records of the United States Department of Justice, containing the name and fingerprints of the defendant as the name and fingerprints appear in the records of the chief custodian's office.
History. Acts 1975, No. 280, § 1003; 1977, No. 474, § 6; 1981, No. 252, § 1; A.S.A. 1947, § 41-1003.
Case Notes
Certified Copy.
Where the docket book was the original, not a copy, there was no reason whatever to certify or authenticate that it was an exact copy. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994).
Circuit Clerk's certification of a copy of a previous conviction record as a true copy, rather than a true and correct copy, was sufficient to satisfy subdivision (b)(1) of this section. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).
Convictions.
Prior convictions on appeal may be used for sentence enhancement. Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987).
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 the habitual offender provisions. Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989).
Evidence.
Proof of defendant's previous convictions was not inadmissible as hearsay where circuit clerk's testimony about them was based upon docket entries and there was no suggestion that the docket entries did not correctly reflect the court's judgments. 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).
Where the state introduced prior convictions, under different names which could not be said to sound identical, the jury's finding that the defendant was the same person as that in the previous convictions was not supported by substantial evidence. Leggins v. State, 267 Ark. 293, 590 S.W.2d 22 (1979).
Even though one of the certified copies of the previous judgments against the defendant 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).
The similarity in sound between a name the defendant had signed on an affidavit and one appearing on a prior conviction connected defendant with the prior conviction. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980).
Where the proof of prior conditions consisted of copies of orders of commitment from a court of competent jurisdiction, duly certified under seal, there was substantial evidence by which the jury could find the prior convictions proved as required by this section. Thomas v. State, 2 Ark. App. 238, 620 S.W.2d 300 (1981).
Evidence held sufficient for the jury to enhance the defendant's sentence. Guzman v. State, 3 Ark. App. 240, 625 S.W.2d 540 (1981); Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).
There was sufficient prima facie proof of defendant's previous convictions. Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982).
Evidence of prior felony convictions held admissible. Shells v. State, 22 Ark. App. 62, 733 S.W.2d 743 (1987).
There was substantial evidence to support finding that appellant had been previously convicted of four felonies. Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990).
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).
Trial court did not err in considering two Mississippi convictions as proof of defendant's habitual-offender status because there was substantial evidence of defendant's identity due to his unique full name. Gipson v. State, 2013 Ark. App. 651 (2013).
Substantial evidence supported the trial judge's imposing a sentencing enhancement because the prosecution presented a certified copy of a prior felony conviction for defendant, identified as a white male (the same race as defendant) with the same date of birth as defendant. Adams v. State, 2014 Ark. App. 308, 435 S.W.3d 520 (2014).
Instructions.
Where the proof of previous convictions was undisputed, the judge was permitted to instruct the jury that the defendant had a certain number of previous convictions. Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).
Juvenile Delinquency Adjudication.
A prior juvenile delinquency adjudication cannot be used for sentence enhancement under the habitual offender law. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001).
Proof.
The burden of proof is on the state to prove the defendant's prior convictions for the purpose of sentencing under the habitual offender statute; the state, however, is not limited to the methods of proof set forth in the statute. Elmore v. State, 268 Ark. 225, 595 S.W.2d 218 (1980); Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).
The state is not limited to the modes of proof of prior convictions listed specifically in this section but can rely on any evidence that satisfied the appropriate burden of proof. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982).
A previous conviction, or finding of guilt, of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991).
Where there was no suggestion whatever that the proof presented did not correctly reflect the judgments in the earlier cases in which defendant was convicted, the state sufficiently proved the three prior convictions. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995).
Circuit court did not abuse its discretion in admitting the Department of Correction pen pack and an uncertified copy of a court of appeals opinion for sentencing-enhancement purposes; although the pen pack incorrectly reflected a guilty plea to two prior felonies, it included defendant's prior convictions, offense dates, sentencing dates, felony classifications, and sentences for each conviction, and the appellate opinion showed that the conviction and sentence were affirmed. Although neither of the documents strictly complied with subsection (b) of this section, the documents did satisfy the circuit court beyond a reasonable doubt under subsection (a) of this section that defendant had been found guilty of the prior felonies. Rayburn v. State, 2019 Ark. 254, 583 S.W.3d 385 (2019).
Question of Fact.
The question of whether photographs and certified records actually established beyond a reasonable doubt that the defendant was the person who had been convicted of the previous offenses is for the trier of fact to decide. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982).
Right of Confrontation.
The introduction of a copy of the defendant's record of prior convictions, which was certified by the custodian of the records, did not violate the defendant's right of confrontation. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982).
Scope of Review.
On an appeal, the test is whether there is substantial evidence from which the jury could have found that the defendant was previously convicted of the questioned felony. Elmore v. State, 268 Ark. 225, 595 S.W.2d 218 (1980); Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982); Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).
Cited: Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Addington v. State, 2 Ark. App. 7, 616 S.W.2d 742 (1981); Guzman v. State, 3 Ark. App. 240, 625 S.W.2d 540 (1981); Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982); Glenn v. State, 281 Ark. 454, 664 S.W.2d 868 (1984); Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984); Beavers v. Lockhart, 755 F.2d 657 (8th Cir. 1985); Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985); Nelson v. Lockhart, 641 F. Supp. 174 (E.D. Ark. 1986); Leggins v. Lockhart, 649 F. Supp. 894 (E.D. Ark. 1986); Nelson v. Lockhart, 828 F.2d 446 (8th Cir. 1987); Ward v. Lockhart, 841 F.2d 844 (8th Cir. 1988); Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990); Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991); Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996); King v. State, 62 Ark. App. 112, 969 S.W.2d 199 (1998); Ray v. State, 2009 Ark. 521, 357 S.W.3d 872 (2009).
5-4-505, 5-4-506. [Repealed.]
Publisher's Notes. These sections, concerning sentence enhancement for use of a firearm and for physical injury to older persons, were repealed by identical Acts 1993, Nos. 532 and 550, § 9. The sections were derived from the following sources:
§ 5-4-505. Acts 1975, No. 280, § 1004; 1981, No. 252, § 2; A.S.A. 1947, § 41-1004.
§ 5-4-506. Acts 1987, No. 160, § 1.
Subchapter 6 — Trial and Sentence — Capital Murder
Publisher's Notes. Acts 1975, No. 280, § 1309, provided that if any provision of §§ 5-4-601 — 5-4-608 or the application thereof to any person or circumstance was held invalid that the invalidity was not to affect other provisions or applications of §§ 5-4-601 — 5-4-608 that could be given effect without the invalid provision or application, and to that end the provisions of §§ 5-4-601 — 5-4-608 were declared to be severable.
For Comments regarding the Criminal Code, see Commentaries Volume B.
Cross References. Costs and fees — Capital cases, § 16-92-104.
Execution of Sentence — Death Penalty, § 16-90-501 et seq.
Post-conviction, § 16-91-201 et seq.
Effective Dates. Acts 1983, No. 546, § 3: Mar. 19, 1983. Emergency clause provided: “It is hereby found and determined that those defendants whose death sentences have been vacated by the appellate courts, with their convictions upheld, have been sentenced to life without parole; because of the provision requiring sentencing by the same jury that determines guilt, the State must either accept the reduced sentence, or, if it wishes to reimpose the death penalty, to retry both the guilt and sentencing phases; it is a waste of judicial resources to require the retrying of an error-free trial if the State wishes to seek to reimpose the death penalty; and this Act is immediately necessary to rectify that problem. Therefore, an emergency is hereby declared to exist, and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”
Acts 1985, No. 833, § 2: Apr. 4, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present statute governing aggravating circumstances which justify the imposition of the death penalty does not adequately provide for appropriate punishment when the crime of capital murder is committed in an especially heinous, atrocious or cruel manner of committing a capital felony murder is an appropriate consideration in determining the penalty for such a crime; and that the addition of this aggravating circumstance to the statutorily authorized list of aggravating circumstances is immediately necessary to provide for its consideration in trials for capital murders which may occur after the passage and approval of this Act. 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 its passage and approval.”
Acts 1993, No. 1089, § 6: Apr. 13, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is necessary to authorize the admission of victim impact evidence at the penalty phase of capital murder trials and that immediate passage of this act is necessary to protect the public peace, health and safety of the state of Arkansas. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”
Acts 2009, No. 1296, § 3: Apr. 9, 2009. Emergency clause provided:
“It is found and determined by the General Assembly of the State of Arkansas that the prompt administration of the death penalty following conviction of a capital offense is necessary to deter the future commission of capital offenses; and that this act is immediately necessary to deter capital offenses and prevent the loss of lives that result upon the commission of capital offenses. 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 2013, No. 139, § 4: Feb. 20, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the current procedures for the administration of the sentence of lethal injection have been declared unconstitutional by the Supreme Court; and that this act is immediately necessary because the constitutional administration of a lethal injection to the state's most dangerous convicted persons furthers the health, safety, and welfare of the people of Arkansas. 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 2015, No. 1096, § 4: Apr. 6, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the courts now require heightened legislative oversight and control over the procedures used in carrying out capital punishment. In addition, victims' families need assurance that capital sentences will be carried out in compliance with prevailing case law. 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 2017, No. 539, § 14: Mar. 20, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that in light of recent United States Supreme Court decisions in Miller v. Alabama and Montgomery v. Louisiana, more than one hundred persons in Arkansas are entitled to relief under those decisions; and that this act is immediately necessary in order to make those persons eligible for parole in order to be in compliance with Montgomery v. Louisiana. 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.
Propriety of imposition of death sentence by state court following jury's recommendation of life imprisonment or lesser sentence. 8 A.L.R.4th 1028.
Am. Jur. 21A Am. Jur. 2d, Crim. L., §§ 950-975.
Ark. L. Rev.
The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.
Note, Grigsby v. Mabry: Convictions Rendered by Death-Qualified Juries Are Unconstitutional, 39 Ark. L. Rev. 335.
Lushing, Capital Punishment: A Disputation, 42 Ark. L. Rev. 105.
C.J.S. 24 C.J.S., Crim L., § 1529 et seq.
U. Ark. Little Rock L.J.
Note, Criminal Procedure — Waiver of Appellate Review of Death Sentences in Arkansas; Standing — Capacity to Litigate Matters of Public Interest in Arkansas,Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), 11 U. Ark. Little Rock L.J. 569.
Case Notes
Constitutionality.
The Arkansas capital punishment procedure under § 5-10-101 and this subchapter appropriately narrows the class of death eligible persons and is constitutional. Perry v. Lockhart, 871 F.2d 1384 (8th Cir. Ark. 1989).
Cited: Franz v. Lockhart, 700 F. Supp. 1005 (E.D. Ark. 1988).