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2014 Ark. App. 21
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-12-1080
Opinion Delivered January 15, 2014
ALAN LEE HOOTEN APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT [NO. CR-1996-
372]
V.
HONORABLE J. MICHAEL
FITZHUGH, JUDGE
STATE OF ARKANSAS MOTION TO WITHDRAW DENIED
APPELLEE WITHOUT PREJUDICE;
REBRIEFING ORDERED
JOHN MAUZY PITTMAN, Judge
Appellant, Alan Lee Hooten, pled guilty in 1997 to a Class “C” felony violation of
the Arkansas Hot Check Law. He was fined $50, ordered to pay court costs of $150, and
ordered to pay restitution in the amount of $4248.62 in $100 monthly installments.
Imposition of any sentence to imprisonment was suspended for three years upon various
conditions, including requirements that appellant not commit any violations of the law; that
he pay the ordered fine, costs, and restitution; and that he report to a probation officer for
the first two years of his suspension. In 2010, the prosecuting attorney filed a petition to
revoke appellant’s suspended sentence, alleging that he had failed to pay the fine, costs, and
restitution. After a 2012 hearing, the trial court found that appellant had inexcusably violated
the conditions of his suspension, revoked the suspension, and sentenced appellant to two
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years in the Arkansas Department of Correction with any additional sentence suspended for
a period of eight years.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(k),
appellant’s attorney has filed a motion to be relieved as counsel on grounds that the appeal
is wholly without merit. Accompanying her motion is an abstract and addendum of the
proceedings below and a brief in which she purportedly discusses any issue that might be
raised on appeal. Because we find counsel’s filing deficient, we deny her motion without
prejudice and order that counsel file a substituted abstract, brief, and addendum.
Rule 4-3(k)(1) provides that:
Any motion by counsel for a defendant in a criminal or a juvenile delinquency case for
permission to withdraw made after notice of appeal has been given shall be addressed
to the Court, shall contain a statement of the reason for the request and shall be served
upon the defendant personally by first-class mail. A request to withdraw on the
ground that the appeal is wholly without merit shall be accompanied by a brief
including an abstract and Addendum. The brief shall contain an argument section that
consists of a list of all rulings adverse to the defendant made by the circuit court on all
objections, motions and requests made by either party with an explanation as to why
each adverse ruling is not a meritorious ground for reversal. The abstract and
Addendum of the brief shall contain, in addition to the other material parts of the
record, all rulings adverse to the defendant made by the circuit court.
Here, counsel’s abstract, brief, and addendum fail to comply with Rule 4-3(k) in
several respects. First, the State’s case-in-chief consisted entirely of two exhibits that were
admitted without objection. However, the exhibits are neither included in the addendum
nor discussed in the brief.
Next, the argument section of the brief notes that one potential issue for appeal is the
sufficiency of the evidence to support the revocation. However, the brief does nothing more
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than state that the trial court found a violation, state this court’s standard of review on appeal,
and conclude that the trial court’s decision is adequately supported by the evidence. There
is no discussion of the evidence against appellant or any mention of the ground on which the
trial court’s decision was based.
Moreover, this case requires some consideration and discussion by appellant’s attorney
of the legality of appellant’s sentence, which is an issue that can be raised for the first time on
appeal. First, although abstracted, counsel fails to discuss the objection made at the close of
the hearing to the State’s delay in moving to revoke appellant’s suspension. Appellant noted,
inter alia, that appellant’s three-year suspension had expired some ten years before the petition
to revoke was filed. See Ark. Code Ann. § 16-93-308(d) (Supp. 2013) (formerly
Ark. Code
Ann. § 5-4-309(d) (Supp. 2009)); but see
Ark. Code Ann. § 16-93-311 (Supp. 2013)
(formerly
Ark. Code Ann. § 5-4-303(h)(2) (Supp. 2009)). Additionally, we note that the
1997 order in this case stated that appellant was given both a suspension and probation.
While mixing the two concepts is ordinarily nonprejudicial (at least where, as in the original
order in this case, supervision by a probation officer is not ordered to occur following service
of a prison sentence), there is caselaw holding that a trial court cannot order both probation
and a suspended sentence for the same offense. See Culpepper v. State,
268 Ark. 263, 268–69,
595 S.W.2d 220, 223 (1980); Sisk v. State,
81 Ark. App. 276, 279–80,
101 S.W.3d 248,
250–51 (2003).
We note that the list of deficiencies in counsel’s brief mentioned here is not necessarily
an exhaustive one. We encourage appellant’s attorney to review our rules prior to filing the
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substituted abstract, brief, and addendum and to rectify any deficiencies or inaccuracies in
addition to those that we have mentioned specifically.
Motion to withdraw denied without prejudice; rebriefing ordered.
GLADWIN, C.J., and WHITEAKER, J., agree.
Camille Edmison-Wilhelmi, for appellant.
No response.
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