Frequently Asked Questions (FAQs)

• Commitment and Dispositions Forms – See A.C.A. 16-90-402
  
• Departure Report Forms
  
• Release Eligibility
  
• Early release from prison
  
• Expungement, Pardons and Parole
  
• Inchoate Crimes Codified at A.C.A. 5-3-101
  
• Suspended Sentences
  
• Can Class Y drug offenders be placed on probation?
  
• Sex Offenses
  
• Victims Rights Act 1262 of 1997
  
• Extended Juvenile Jurisdiction Act
  
• Sentencing News
  
• Acts of 2007

Commitment and Dispositions Forms - See A.C.A.16-90-402

Who is responsible for judgment and commitment forms?

Accurate commitment forms are essential for the Department of Correction to determine how long to keep a particular offender on a particular offense and when he may be eligible for release. A uniform form is the responsibility of the Department of Correction, the Arkansas Judicial Council and the Arkansas Prosecuting Attorneys' Association. The Arkansas Supreme Court adopted Administrative Order Number 8 - Forms for Reporting Case Information in all Arkansas Trial Courts on February 26, 1996. This Order makes the office of the prosecuting attorney responsible for completion of Judgment and Commitment and Judgment and Disposition forms.

Following submission to the circuit judge for his signature, these forms are filed with the circuit clerk and a copy forwarded to the Administrative Office of the Courts. A certified copy of a Judgment and Commitment is to be delivered by the sheriff with the defendant to the Department of Correction.

The following data elements are often omitted or incorrect and result in amendments being necessary and delays incurred. This is not an all inclusive list, but is prepared for form instruction purposes only.

1. Offense date - release laws are determined by the date of the offense. Without an offense date, release eligibility cannot be determined.
   
   
2. Offense classification - release eligibility may be determined by the offense class
   
   Transfer eligibility - whether an offense is above or below the transfer eligibility line may be determined by the class of the offense
   
   Drug offenses - the schedule of the drug may affect the class and release eligibility
   
   Inchoate offenses - solicitation, attempt and conspiracy are one class lower than the substantive crime which may affect their release eligibility
   
   Misdemeanors - persons cannot be committed to the DOC for misdemeanors
   
   
3. Inchoate offenses - citing the inchoate statute without the substantive offense does not give sufficient information on why the person is being committed
   
   
4. Total time to serve - this is necessary to determine how long the offender is to be held - it is especially important to avoid problems when additional suspended sentences are imposed and when multiple counts or cases are run consecutively
   
   
5. Sentence enhancement - this field has been updated on the current version of the Judgment and Commitment and Judgment and Disposition forms. A blank has been added to include the enhanced portion of the sentence. Please see “Release Eligibility - Enhanced Sentences” for a discussion on the applicability of Act 1047 of 2007.
   
   
6. Criminal History Scores - missing or inaccurate criminal history scores could cause perceived disparities where none exist.
   
   
7. Departure reports - - without a departure report, an offender whose offense was committed prior to July 1, 2005, may be released early. (Please note: although the Department of Correction no longer requires a departure report on offenses committed on or after July 1, 2005, a departure report should still be sent to the Sentencing Commission for those cases which result in a departure from the presumptive sentence. Please refer to the Frequently Asked Questions section regarding Departure Reports for a discussion on applicable cases)
   

The commitment form provides the DOC with their legal basis for taking custody of an inmate. The basic information which they must have is: they have the right person (identification information - name, DOB, race, gender, etc); why they can keep him (his crime); how long to keep him (this sentence); when to release him(total time to serve); and the authority committing him (the court, the case, etc.). The requirement in Arkansas Code Annotated § 16-93-1208(a)(2)(A) that “written reason” for a departure accompany a sentence or the inmate is eligible for transfer or release pursuant to the presumptive sentence has been deleted pursuant to Act 186 of 2005. However, departure reports are still required to accompany the sentence for crimes occurring before July 1, 2005 (the effective date of the Act). Please refer to the Frequently Asked Questions section on Departure Reports for complete instructions on Departure Report requirements.

"Judicial transfers" are commitments to the DOC with a transfer to the DCC by the judge. The offenders go directly to the DCC and are released from there. Commitments need to reflect a judicial transfer in three places:

1. "Defendant is assigned to..."
   
   
2. "Defendant committed a target offense..."
   
   
3. "The County Sheriff is hereby ordered..."
   

Departure Report Forms

When do you use them and when do you not? Where do they go?

Act 186 of 2005 affects the use of departure reports for crimes occurring after July 1, 2005. For all crimes occurring after this date, the trial court may deviate from the presumptive sentence without providing a written justification. However, the Act provides that where there is an “agreed departure” from the presumptive sentence, “written reasons” shall be supplied by the parties to the court to attach to the commitment and to forward to the Sentencing Commission. The report should be completed and forwarded to the Sentencing Commission (1) when there is an agreed upon departure (i.e. plea agreement) from the guidelines, between the prosecution and the defense which is accepted by the court, and (2) when (a) the disposition differs from the presumptive disposition; (b) the sentence length differs from the presumptive sentence length; or (c) the disposition and duration differ from the presumptive disposition and duration provided in the guidelines.

This may be a dispositional or a durational departure. It is only for the most serious count in a multiple count case. When using the Departure Form provided by the Arkansas Sentencing Commission, an aggravating reason should be marked if the sentence is an upward departure or a mitigating reason should be marked if the sentence is a downward departure. The parties are to supply the court with written reasons for the departure, or they may use the Arkansas Sentencing Commission Departure Form. The original should be filed with the court file. A copy of the written reasons/departure report, along with a copy of the Judgment and Commitment/Disposition form, should be sent to the Sentencing Commission. Most jurisdictions have either the prosecuting attorney’s office or the court clerk send the Commission a copy of the written reasons/departure report and the judgment and commitment/disposition form. Departure Reports are not required for revocation proceedings. However, the Judgment and Commitment form must state that this commitment is a result of a revocation (please see A.C.A. 16-90-803(a)(1)(B)). Please call the Sentencing Commission at (501) 682-5001 with questions concerning departure reports. In order to eliminate some of the time-consuming paperwork, the Sentencing Commission will continue to notify Prosecutor’s offices when a Departure Report has been unnecessarily prepared.

The following are the most common reasons for unnecessary Departure Reports and the statutory reference for each.

1. Imposed sentence is not a departure from the sentencing standards.
   
   
2. Imposed sentence is a result of Probation/SIS revocation. (Departure reasons are not necessary on revocations disposed after 8/13/2001). Please see A.C.A. 16-90-803(a)(1)(B).
   
   
3. Jury trial, jury sentenced. Please see A.C.A 16-90-803(b)(4).
   
   
4. Mitigated departure not necessary when AS/RPF is available as the presumptive sentence. Please see A.C.A. 16-90-804(a)(2)(B).
   
   
5. Most severe offense was not a departure. Please see A.C.A. 16-90-804(a)(2)(A).
   
   
6. Felony DWI. Please see Arkansas Sentencing Standards Grid Policy Statements.
   
   
7. Capital murder. Please see A.C.A. 16-90-803(b)(5).
   
   
8. Offense was nol prossed or dismissed.
   

Certain offenses will serve 70% of their prison sentence without credit for good time. These offenses are noted on the grids. It is important that Manufacturing Methamphetamine and Drug Paraphernalia Used to Manufacture Methamphetamine be specifically noted on the Judgment and Commitment as it is a subset of the statute and the DOC will not know to apply this release criteria unless it is noted on the commitment. The Methamphetamine offenses were originally scheduled to sunset on April 30, 2002. However, Act 1782 of 2001 repealed the sunset provisions. (See A.C.A. 29-30-162 and 29-30-163). Act 717 of 1999 provides this statute may be waived for juveniles convicted as adults who were merely accomplices.

For persons who have been found guilty, pled guilty, or nolo contendre to the manufacture of methamphetamine or possession of drug paraphernalia with the intent to manufacture methamphetamine and the offense occurred on or after August 12, 2005, Act 1034 of 2005 provides that the seventy-percent (70%) parole eligibility shall include credit for the award of meritorious good time under A.C.A. §§ 12-29-201 and 12-29-202. This does not apply if the person is sentenced to a term of life imprisonment. In no event shall the time served by these persons be reduced to less than fifty-percent (50%) of their original sentence. This Act does not change the parole eligibility percentage for these offenses, therefore, Department of Correction time computation cards will still reflect a seventy-percent (70%) transfer eligibility status, but the transfer eligibility date will be calculated on the projected earned good time. Offenders sentenced for offenses committed prior to the effective date of this act are not subject to receiving good time. Offenders sentenced to a Regional Correctional Facility via judicial transfer for Paraphernalia used to Manufacture Methamphetamine are still subject to 70% parole eligibility with good time that will not reduce time served to less than fifty-percent (50%) of their original sentence.

Release Eligibility - Enhanced Sentences

Act 1047 of 2007 codifies current practices for calculating parole eligibility on the enhanced portion of felony sentences. This Act basically states that unless otherwise noted in the specific enhancement statute, the percentage of time served shall be the calculated the same as the underlying offense. For example, if an offender is given a sentence enhancement of ten years pursuant to A.C.A. § 16-90-120 and the underlying offense is below the transfer eligibility line on the sentencing grid, the offender would not be eligible for parole until the person serves one-third (1/3) of the term of imprisonment to which the person is sentenced with credit for meritorious good time. Enhancements on underlying offenses above the transfer eligibility line would serve one-half (1/2) less good time, and enhancements on underlying offenses designated as seventy-percent (70%) transfer eligible would serve seventy-percent of the enhancement with good time available on applicable drug offenses.

In order for the Department of Correction to correctly calculate the percentage of time to be served prior to transfer eligibility, it is imperative that the enhancement portion of the sentence is noted in the offense section of the underlying offense on the judgment and commitment form.

Yes, the only exceptions are the Emergency Powers Act (A.C.A. 12-28-601 et seq.) and Boot Camp (A.C.A. 12-28-701 et seq.). Certain offenses are not eligible for boot camp and no offender with a sentence longer than ten years is eligible. Boot camp is a Department of Correction program, not a sentencing alternative. Therefore, eligibility for this program is determined both by statute and DOC programming requirements. Questions concerning eligibility to this program should be directed to the Department of Correction Boot Camp Coordinator.

The Emergency Powers Act was amended during the 2003 legislative session. Subsection (a) refers to early release of inmates when the capacity of the rated capacity of the Department reaches 98%. Inmates who meet the criteria set out in the statute may have their incarceration time shortened by no more than three months. Subsection (b) refers to an overcrowding condition when the county jail backlog exceeds 500. Inmates, who have been incarcerated in a Department of Correction facility for a minimum of six months and are serving a sentence for a nonviolent offense as established by the board, may have their transfer eligibility date moved up one year. (Please refer to A.C.A. 12-28-604).

1. Section one adds A. C. A. § 5-4-105, Expungement and Sealing Options, which outlines the appropriate code sections to reference for expungement and sealing procedures depending on the disposition of the case.
2. Section amends A. C. A. § 16-93-303, Procedure:
   • to allow a defendant who has not been previously convicted of a felony and who has been placed on probation for a period of not less than one year, to be sentenced to a fine not exceeding three thousand five hundred dollars ($3,500) or an assessment of court costs without negating the benefits of this section and without constituting a conviction,
     
   • to require that during the period of probation, a defendant must disclose his felony conviction status for: 1) application of any law prohibiting possession of a firearm by certain persons; 2) determination of habitual offender status; 3) determination of criminal history; 4) determination of criminal history scores; 5) sentencing; and 6) the purpose of impeachment as a witness under Rule 609 of the Arkansas Rules of Evidence,
     
   • to require that after successful completion of probation, a defendant must disclose his felony conviction status for” 1) determination of habitual offender status; 2) determination of criminal history; 3) determination of criminal history scores; 4) sentencing; and 5) the purpose of impeachment as a witness under Rule 609 of the Arkansas Rules of Evidence; and
     
   • provides that § 5-73-103, Possession of a firearm by certain persons, governs the eligibility to possess a firearm by a person whose record has been expunged and sealed under § 16-90-901 and § 16-93-303.
3. Section three amends § 16-93-1202(10), by changing the definition of “target group” for the purpose of expungement and a sealing of a record to include any misdemeanor conviction except a misdemeanor conviction for which the offender is required to register as a sex offender or a misdemeanor DWI conviction.
4. Section four amends § 16-97-1207, Order of court by requiring the sentencing court to issue a written order or commitment if the offender is being committed to a county jail for a misdemeanor offense committed after January 1, 2007.

(e)(1) The court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for the following offenses:

(F) Drug related offenses under the Uniform Controlled Substances Act, 5-64-101 et seq. except to the extent that probation is otherwise permitted under subchapters 1-6 of chapter 64.

However, for habitual offenders please see State v. Tiffany Terra Joslin 364 Ark. 545.222 s.w.3d 168 (2006) in which the court noted that “. . . under Arkansas Code Annotated 5-4-301, the law expressly states that the court shall not place a defendant on probation if it is determined that the defendant has been previously convicted of two or more felonies, in accordance with the habitual offender statute.”

Act 330 of 2003 makes provisions for placing information about levels 3 and 4 sex offenders on the State of Arkansas Internet home page. It also make it a Class D felony for level 3 or 4 sex offenders to reside within 2000' of property on which any public or private elementary or secondary school or daycare facility is located.

Act 392 of 2007 prohibits a registered sex offender from obtaining or possessing identification cards or driver’s licenses with incorrect physical addresses.

Act 394 of 2007 prohibits a level 3 or 4 sex offender from knowingly residing within 2000' of his or her victim and from having direct or indirect contact with his or her victim for the purpose of harassment. It also adds Internet stalking of a child, felony video voyeurism and felony voyeurism to the list of offenses defined as “sex offenses.”

Act 818 of 2007 prohibits level 3 and 4 sex offenders from residing within 2000' of public parks and youth centers.

Act 992 of 2007 prohibits level 3 and 4 sex offenders from entering upon school campuses. Certain parental exceptions are listed in the Act.

Victims Rights Act 1262 of 1997 See A.C.A.16-90-1101 (Repl. 1997)

Acts of 2007. Sentencing Changes

Numerous acts created new crimes, new classifications, new enhancements and new definitions. Some of these acts include: Act 200 (provides for enhanced penalty for manufacture of methamphetamine in the presence of an elderly or incompetent person), Act 345 (provides for enhanced penalty for selling of controlled substances within one thousand feet of a designated school bus stop), Act 622 (raises the felony classification of battery in the first degree to a Class Y if the victim is four years of age or younger), Act 709 (“Corporal Scott Baxter’s Law” which raises the felony class of battery in the first degree to a Class Y if the victim is a law enforcement officer acting in the line of duty), and Act 1608 (creates the offense of aggravated residential burglary and classifies it as a Class Y felony). The new seriousness rankings have been incorporated into the seriousness reference table sections of this book. You may also find information concerning sentencing guidelines at our web site: http://www.arkansas.gov/asc/.

e-mail:sandy.moll@arkansas.gov