5-4-501. Habitual offenders — Sentencing for felony.

5-4-501. Habitual offenders — Sentencing for felony. (a)(1) A defendant meeting the following criteria may be sentenced to pay any fine authorized by law for the felony conviction and to an extended term of imprisonment as set forth in subdivision (a)(2) of this section: (A) A defendant who: (i) Is convicted of a felony other than those enumerated in subsections (c) and (d) of this section committed after June 30, 1993; and (ii) Has previously been convicted of more than one (1) felony but fewer than four (4) felonies or who has been found guilty of more than one (1) but fewer than four (4) felonies; (B) A defendant who: (i) Is convicted of any felony enumerated in subsection (c) of this section committed after August 31, 1997; and (ii) Has previously been convicted of more than one (1) felony but fewer than four (4) felonies not enumerated in subsection (c) of this section or who has been found guilty of more than one (1) but fewer than four (4) felonies not enumerated in subsection (c) of this section; or (C) A defendant who: (i) Is convicted of any felony enumerated in subsection (d) of this section committed after August 31, 1997; and (ii) Has previously been convicted of more than one (1) felony but fewer than four (4) felonies not enumerated in subsection (d) of this section or has been found guilty of more than one (1) but fewer than four (4) felonies not enumerated in subsection (d) of this section. (2) The extended term of imprisonment for a defendant described in subdivision (a)(1) of this section is as follows: (A) For a conviction of a Class Y felony, a term of imprisonment of not less than ten (10) years nor more than sixty (60) years, or life; (B) For a conviction of a Class A felony, a term of imprisonment of not less than six (6) years nor more than fifty (50) years; (C) For a conviction of a Class B felony, a term of imprisonment of not less than five (5) years nor more than thirty (30) years; (D) For a conviction of a Class C felony, a term of imprisonment of not less than three (3) years nor more than twenty (20) years; (E) For a conviction of a Class D felony, a term of imprisonment of not more than twelve (12) years; (F) For a conviction of an unclassified felony punishable by less than life imprisonment, a term of imprisonment not more than five (5) years more than the maximum sentence for the unclassified felony; and (G) For a conviction of an unclassified felony punishable by life imprisonment, a term of imprisonment not less than ten (10) years nor more than fifty (50) years, or life. (b)(1) A defendant meeting the following criteria may be sentenced to pay any fine authorized by law for the felony conviction and to an extended term of imprisonment as set forth in subdivision (b)(2) of this section: (A) A defendant who: (i) Is convicted of a felony other than a felony enumerated in subsections (c) and (d) of this section committed after June 30, 1993; and (ii) Has previously been convicted of four (4) or more felonies or who has been found guilty of four (4) or more felonies; (B) A defendant who: (i) Is convicted of any felony enumerated in subsection (c) of this section committed after June 30, 1997; and (ii) Has previously been convicted of four (4) or more felonies not enumerated in subsection (c) of this section or who has been found guilty of four (4) or more felonies not enumerated in subsection (c) of this section; or (C) A defendant who: (i) Is convicted of any felony enumerated in subsection (d) of this section committed after June 30, 1997; and (ii) Has previously been convicted of four (4) or more felonies not enumerated in subsection (d) of this section or who has been found guilty of four (4) or more felonies not enumerated in subsection (d) of this section. (2) The extended term of imprisonment for a defendant described in subdivision (b)(1) of this section is as follows: (A) For a conviction of a Class Y felony, a term of imprisonment of not less than ten (10) years nor more than life; (B) For a conviction of a Class A felony, a term of imprisonment of not less than six (6) years nor more than sixty (60) years; (C) For a conviction of a Class B felony, a term of imprisonment of not less than five (5) years nor more than forty (40) years; (D) For a conviction of a Class C felony, a term of imprisonment of not less than three (3) years nor more than thirty (30) years; (E) For a conviction of a Class D felony, a term of imprisonment of not more than fifteen (15) years; (F) For a conviction of an unclassified felony punishable by less than life imprisonment, a term of imprisonment not more than two (2) times the maximum sentence for the unclassified felony offense; and (G) For a conviction of an unclassified felony punishable by life imprisonment, a term of imprisonment not less than ten (10) years nor more than fifty (50) years, or life. (c)(1) Except as provided in subdivision (c)(3) of this section, a defendant who is convicted of a serious felony involving violence enumerated in subdivision (c)(2) of this section and who previously has been convicted of one (1) or more of the serious felonies involving violence enumerated in subdivision (c)(2) of this section may be sentenced to pay any fine authorized by law for the serious felony involving violence conviction and shall be sentenced: (A) To imprisonment for a term of not less than forty (40) years nor more than eighty (80) years, or life; and (B) Without eligibility for parole or community correction transfer except under § 16-93-615. (2) As used in this subsection, “serious felony involving violence” means: (A) Any of the following felonies: (i) Murder in the first degree, § 5-10-102; (ii) Murder in the second degree, § 5-10-103; (iii) Kidnapping, § 5-11-102, involving an activity making it a Class Y felony; (iv) Aggravated robbery, § 5-12-103; (v) Terroristic act, § 5-13-310, involving an activity making it a Class Y felony; (vi) Rape, § 5-14-103; (vii) Sexual assault in the first degree, § 5-14-124; (viii) Causing a catastrophe, § 5-38-202(a); (ix) Aggravated residential burglary, § 5-39-204; or (x) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony; or (B) A conviction of a comparable serious felony involving violence from another jurisdiction. (3) A defendant who is convicted of rape, § 5-14-103, or sexual assault in the first degree, § 5-14-124, involving a victim less than fourteen (14) years of age and who has previously been convicted of one (1) or more of the serious felonies involving violence enumerated in subdivision (c)(2) of this section may be sentenced to pay any fine authorized by law for the rape or sexual assault in the first degree conviction and shall be sentenced to life in prison without the possibility of parole. (4)(A) The following procedure governs a trial at which a sentence to an extended term of imprisonment is sought pursuant to this subsection: (i) The jury shall first hear all evidence relevant to the serious felony involving violence with which the defendant is currently charged and shall retire to reach a verdict of guilt or innocence on this charge; (ii)(a) If the defendant is found guilty of the serious felony involving violence, out of the hearing of the jury the trial court shall hear evidence of whether the defendant has pleaded guilty or nolo contendere to or been found guilty of a prior serious felony involving violence and shall determine the number of prior serious felony involving violence convictions, if any. (b) The defendant has the right to hear and controvert evidence described in subdivision (c)(4)(A)(ii)(a) of this section and to offer evidence in his or her support; (iii)(a) The trial court shall then instruct the jury as to the number of prior convictions for a serious felony involving violence and the statutory sentencing range. (b) The jury may be advised as to the nature of a prior serious felony involving violence conviction and the date and place of a prior serious felony involving violence conviction; and (iv) The jury shall retire again and then determine a sentence within the statutory range. (B) The determination of whether a felony conviction from another jurisdiction is comparable to an enumerated serious felony involving violence under Arkansas criminal law lies within the discretion of the trial judge at the time of sentencing. (d)(1) A defendant who is convicted of a felony involving violence enumerated in subdivision (d)(2) of this section and who previously has been convicted of two (2) or more of the felonies involving violence enumerated in subdivision (d)(2) of this section may be sentenced to pay any fine authorized by law for the felony involving violence conviction and shall be sentenced to an extended term of imprisonment without eligibility for parole or community correction transfer except under § 16-93-615 as follows: (A) For a conviction of a Class Y felony, a term of imprisonment of not less than life in prison; (B) For a conviction of a Class A felony, a term of imprisonment of not less than forty (40) years nor more than life in prison; (C) For a conviction of a Class B felony or for a conviction of an unclassified felony punishable by life imprisonment, a term of imprisonment of not less than thirty (30) years nor more than sixty (60) years; (D) For a conviction of a Class C felony, a term of imprisonment of not less than twenty-five (25) years nor more than forty (40) years; (E) For a conviction of a Class D felony, a term of imprisonment of not less than twenty (20) years nor more than forty (40) years; and (F) For a conviction of an unclassified felony punishable by less than life imprisonment, a term of imprisonment not more than three (3) times the maximum sentence for the unclassified felony offense. (2) As used in this subsection, “felony involving violence” means: (A) Any of the following felonies: (i) Murder in the first degree, § 5-10-102; (ii) Murder in the second degree, § 5-10-103; (iii) Kidnapping, § 5-11-102; (iv) Aggravated robbery, § 5-12-103; (v) Rape, § 5-14-103; (vi) Battery in the first degree, § 5-13-201; (vii) Terroristic act, § 5-13-310; (viii) Sexual assault in the first degree, § 5-14-124; (ix) Sexual assault in the second degree, § 5-14-125; (x) Domestic battering in the first degree, § 5-26-303; (xi) Residential burglary, § 5-39-201(a); (xii) Aggravated residential burglary, § 5-39-204; (xiii) Unlawful discharge of a firearm from a vehicle, § 5-74-107; (xiv) Criminal use of prohibited weapons, § 5-73-104, involving an activity making it a Class B felony; (xv) A felony attempt, solicitation, or conspiracy to commit: (a) Capital murder, § 5-10-101; (b) Murder in the first degree, § 5-10-102; (c) Murder in the second degree, § 5-10-103; (d) Kidnapping, § 5-11-102; (e) Aggravated robbery, § 5-12-103; (f) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony; (g) Rape, § 5-14-103; (h) Battery in the first degree, § 5-13-201; (i) Domestic battering in the first degree, § 5-26-303; (j) Residential burglary, § 5-39-201(a); or (k) Aggravated residential burglary, § 5-39-204; or (xvi) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony; or (B) A conviction of a comparable felony involving violence from another jurisdiction. (3)(A) The following procedure governs a trial at which a sentence to an extended term of imprisonment is sought pursuant to this subsection: (i) The jury shall first hear all evidence relevant to the felony involving violence with which the defendant is currently charged and shall retire to reach a verdict of guilt or innocence on this charge; (ii)(a) If the defendant is found guilty of the felony involving violence, out of the hearing of the jury the trial court shall hear evidence of whether the defendant has pleaded guilty or nolo contendere to or been found guilty of two (2) or more prior felonies involving violence and shall determine the number of prior felony involving violence convictions, if any. (b) The defendant has the right to hear and controvert evidence described in subdivision (d)(3)(A)(ii)(a) of this section and to offer evidence in his or her support; (iii)(a) The trial court shall then instruct the jury as to the number of prior felony involving violence convictions and the statutory sentencing range. (b) The jury may be advised as to the nature of a prior felony involving violence conviction and the date and place of a prior felony involving violence conviction; and (iv) The jury shall retire again and then determine a sentence within the statutory range. (B) The determination of whether a felony conviction from another jurisdiction is comparable to an enumerated felony involving violence under Arkansas criminal law lies within the discretion of the trial judge at the time of sentencing. (e)(1) For the purpose of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary, § 5-39-201, and of the felony that was the object of the burglary are considered a single felony conviction or finding of guilt. (2) A conviction or finding of guilt of an offense that was a felony under the law in effect prior to January 1, 1976, is considered a previous felony conviction or finding of guilt. (f) For the purposes of determining whether a defendant has previously been convicted of a serious felony involving violence or a felony involving violence under subsections (c) and (d) of this section, the entry of a plea of guilty or nolo contendere or a finding of guilt by a court to a felony enumerated in subsections (c) and (d) of this section, respectively, as a result of which a court places the defendant on a suspended imposition of sentence, a suspended sentence, or probation, or sentences the defendant to the Division of Correction, is considered a previous felony conviction. (g) Any defendant deemed eligible to be sentenced under a provision of both subsections (c) and (d) of this section shall be sentenced only under subsection (d) of this section. (h) If the provisions of subsection (c) or subsection (d) of this section, or both, are held invalid by a court, the defendant's case shall be remanded to the trial court for resentencing of the defendant under the provisions of subsections (a) and (b) of this section.