🚨When a “Small” Theft Becomes a Felony Ark. Code Ann. § 5-36-103
🚨 When a “Small” Theft Becomes a Felony
Arkansas Code Ann. § 5-36-103(b)(3)(J), as amended in 2024, says that if:
“The value of the property is one thousand dollars ($1,000) or less and the person has previously been convicted of a theft offense of any classification within the preceding ten (10) years,” then the new offense is elevated to a Class D felony, even though the value would normally be a class A misdemeanor for less than $1,000.
In other words, a second theft — even if the property is worth $50, $100, or $500 — can be charged as a felony if it’s within ten years of a prior theft conviction.
That includes prior convictions for:
- Shoplifting (theft of property)
- Theft by deception
- Theft of services
- Theft by receiving
- Any other theft offense under Arkansas law
🧾 Example
Suppose you were convicted of misdemeanor shoplifting in 2021 for stealing $200 worth of merchandise. Now, in 2025, you’re accused of taking a $600 cell phone from a store. Even though $600 is well under the $1,000 misdemeanor threshold, prosecutors can charge the new offense as a Class D felony because it’s a second theft within ten years.
That felony conviction can expose you to up to 6 years in the Arkansas Department of Corrections and a fine of up to $10,000 — all for an act that would have been a misdemeanor the first time.
🕰 The Ten-Year “Look-Back” Period
The ten-year period runs from the date of the prior conviction to the date of the new offense.
So if your first theft conviction was in 2015, and your next offense happens in 2026, that’s outside the ten-year window, and the repeat-offense enhancement does not apply.
However, if it’s within ten years — even by a few months — prosecutors can pursue the felony enhancement.
🔍 Why This Rule Exists
Arkansas lawmakers created this enhancement to deter repeat property crimes. The idea is that someone who re-offends after a prior theft conviction shows a pattern of behavior deserving harsher punishment.
But in practice, it often captures low-level, non-violent defendants — people who made another bad decision, not career criminals. That’s why these cases demand careful attention from your defense lawyer.
🧩 Possible Defense Strategies
As your defense attorney, here’s how I’d approach a case like this:
- Challenge the prior conviction:
The prosecution must prove a valid prior theft conviction within the 10-year window. If the record is incomplete or the conviction doesn’t qualify, the felony enhancement fails. - Question the value of the property:
The alleged property value determines classification. If the state can’t prove the value exceeds $1,000, that limits their options — and in repeat cases, this can affect plea leverage. - Explore intent and authorization:
Theft requires intent to deprive the owner. Mistaken ownership, confusion, or lack of intent can negate the charge. - Negotiate for misdemeanor treatment:
In many counties, prosecutors will agree to reduce a second theft to a misdemeanor with restitution, community service, or deferred adjudication if the defendant is cooperative and the loss is small. - Seek diversion or expungement eligibility:
Depending on circumstances, your attorney can work toward avoiding a conviction that follows you for life.
⚖️ Felony vs. Misdemeanor — Why It Matters
The difference between a misdemeanor and a Class D felony conviction is enormous:
Consequence Misdemeanor D Felony
Incarceration County jail (max 1 year) State prison (0–6 years)
Fine Up to $2,500 Up to $10,000
Civil rights Retained Lose voting, firearm, jury rights
Record sealing. Often eligible. More limited, longer time
Employment. Easier to explain. Can't pass background check
A second theft conviction can change the course of your future. It’s essential to understand these stakes before entering a plea.
❓ Frequently Asked Questions
Q: What counts as a “prior theft conviction”?
A: Any conviction for theft of property, theft of services, or similar offense under Arkansas law — misdemeanor or felony — counts toward the enhancement.
Q: What if my prior theft was expunged or sealed?
A: If a conviction was properly sealed or expunged, it may not count as a “prior conviction.” Your attorney can confirm by reviewing the court records.
Q: Can I get probation for a second theft felony?
A: Yes, Class D felonies often allow probation, especially if the value was low and restitution is paid. But it’s still a felony record.
Q: How long will a felony theft stay on my record?
A: Unless sealed or expunged, a felony conviction remains indefinitely. Certain non-violent felonies can be sealed after a waiting period, usually 5 years after completing the sentence.
Q: What if I pay the victim back?
A: Restitution can help in sentencing and plea negotiations, but it doesn’t automatically dismiss the charge. However, it shows accountability and can influence the judge’s leniency.
A second theft charge in Arkansas — even one involving a low dollar amount — can carry felony consequences under Ark. Code § 5-36-103.
If you or a loved one are facing theft allegations, it’s critical to act quickly. Don’t assume “it’s just a shoplifting case.” The difference between a misdemeanor and a felony can change your life.
🏛 Contact an Arkansas Theft Defense Lawyer
If you’re charged with theft of property or have questions about whether a prior conviction could make a new case a felony, I can help.
I’ve represented clients across Arkansas in theft, fraud, and property-related cases — and I understand how prosecutors build these charges.
Call 501-404-2055 or visit clintondewittlaw.com/contact to schedule a free consultation.
Note: This blog post is for informational purposes only and does not constitute legal advice. For personalized legal assistance, please consult with an attorney.