Opinion highlights for the week of August 30, 2026

 

The Arkansas Court of Appeals' September 2, 2026, syllabus notes twelve decisions.  The Arkansas Supreme Court did not issue a syllabus this morning.  Two of those Court of Appeals opinions are of interest here.

Henderson v. State, 2026 Ark. App. 378, involves a challenge to certain fees and costs imposed in a probation revocation proceeding.  The State argued that the Court of Appeals lacked jurisdiction, since Henderson's notice of appeal did not list prior orders imposing some of those fees and costs.

The Court of Appeals rejected the State's argument for two reasons.  First, the sentencing order on appeal incorporated those prior orders when it ordered Henderson to "pay all previously assessed fines, costs, restitution, etc. upon release."  Second, Henderson's argument invoked the issue of an illegal sentence, which can be raised as a matter of subject matter jurisdiction for the first time on appeal.  Thus, the Court of Appeals had jurisdiction to reach the merits.

The appellant challenged the propriety of a sentencing order's forfeiture provision in Roberts v. State, 2026 Ark. App. 381.  On appeal, the State conceded that the forfeiture provision should be removed upon remand.  The Court of Appeals ordered that relief, but otherwise affirmed Roberts' conviction.

Roberts argued that he could challenge the forfeiture provision on appeal without having filed a post-trial motion to preserve the issue, since "the forfeiture provision appeared without notice for the first time in the sentencing order." Id. at 3.  The Court of Appeals agreed.

When an appellant has no opportunity to object to a sentencing error in the circuit court, the absence of an objection does not preclude appellate review. See, e.g., Eberlein v. State, 315 Ark. 591, 593–94, 869 S.W.2d 12, 13–14 (1994). Here, the circuit court did not order the forfeiture when it pronounced the sentence; the forfeiture provision appeared for the first time in the sentencing order. Accordingly, Roberts had no opportunity to object before the sentencing order was entered.

Roberts, 2026 Ark. App. 381, at 3-4.  The court also noted that Robert's challenge raised an illegal sentence issue which could be reviewed for the first time on appeal.  Thus, his claim was properly before the appellate court.

Interestingly, the Court of Appeals did not cite Wicks.  But the second exception to the plain error rule set forth in that case involves exactly this rule: even if not preserved below, an issue may be raised on appeal "when the error is made by the trial judge himself at a time when defense counsel has no knowledge of the error and hence no opportunity to object." Wicks v. State, 270 Ark. 781, 786, 606 S.W.3d 366, 369 (1980).  The language in Roberts could be broad enough to support other arguments about sentencing order errors - if the context is similar - made for the first time on appeal.  Citing the second Wicks exception wouldn't hurt.

Thanks for reading.  Enjoy your Labor Day weekend.