Page:Jones v. State, 357 Ark. 545 (2004).pdf/13

Rh be sentenced to any one or more of the following, except as precluded by subsection (e) of this section:

(1) Imprisonment; or

(2) Probation; or

(3) Pay a fine, as authorized by §§ 5-4-201–5-4-203; or

(4) Make restitution; or

(5) Imprisonment and to pay a fine.

(e)(4) The court shall not suspend imposition of sentence, place the defendant on probation, or sentence him to pay a fine if it is determined, pursuant to § 5-4-502, that the defendant has previously been convicted of two (2) or more felonies. Ark. Code Ann. § 5-4-104.

We interpreted subsection (e)(4), which has since been repealed, in Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986), where we stated: "The last sentence is relied on by appellant for the proposition that the court cannot impose a fine on an habitual offender. This sentence is a limitation on the court's exercise of the leniency allowed in the first part of the statute. Read in context, it obviously means that the court is not allowed to 'only' impose a fine in place of a prison sentence when the defendant is an habitual offender. There is no conceivable reason why the legislature would allow fines to be assessed against first offenders in addition to a prison sentence, and not allow fines for habitual offenders." ''Id. See also Adams v. State'', 25 Ark. App. 212, 755 S.W.2d 579 (1988) (interpreting the language of the 1987 statute).

In 1993, the General Assembly repealed subsection (e)(4). 1993 Ark. Acts 532, § 9; 550, § 9. Ark. Code Ann. § 5-4-104(d) (Supp. 2003) now provides in pertinent part: "(d) A defendant convicted of an offense other than a Class Y felony, capital murder, § 5-10-101, treason, § 5-51-201, or murder in"