Page:Jones v. State, 357 Ark. 545 (2004).pdf/14

558 the second degree § 5-10-103, may be sentenced to any one (1) or more of the following, except as precluded by subsection (e) of this section:

(1) Imprisonment as authorized by §§ 5-4-401–5-4-404; or

(2) Probation as authorized by §§ 5-4-301–5-4-311; or

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

(4) Make restitution as authorized by the provisions of § 5-4-205; or

(5) Imprisonment and to pay a fine. Ark. Code Ann. § 5-4-104(d).

[13] Here, under subsections (1), (3), and (5), respectively, the statute allows for imprisonment, payment of a fine, or imprisonment and a payment of a fine. However, AMCI 2d 9202 allows for the jury to consider only the possibility of imprisonment when the defendant is an habitual offender. It does not give the jury the option of considering only the payment of a fine, as authorized by Ark. Code Ann. § 5-4-104(d)(3). Thus, AMCI 2d 9202 does not accurately reflect the law in effect after 1993. We have said that our criminal jury instructions do not trump the plain language of our criminal statutes. McCoy v. State, 348 Ark. 239, 240, 74 S.W.3d 599, 600 (2002). We further note that the State concedes the trial court's error with respect to this point on appeal regarding jury instructions.

[14] For the foregoing reasons, we hold that the trial court erroneously instructed the jury under AMCI 2d 9202. Accordingly, we affirm the convictions in the guilt phase, but remand for resentencing in the penalty phase.

Affirm in part; reverse and remand in part. 

G, C, and I, JJ., dissent.  C I, Justice, dissenting. Today the majority opinion overrules Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), by adopting an analysis specifically rejected by the majority opinion in that case. I agree with the majority decision in Harbison and must, therefore, respectfully dissent.