ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-251
Opinion Delivered September 3, 2014
TIMOTHY ALLEN FIVEASH APPEAL FROM THE BOONE
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2012-112-3]
V.
HONORABLE ROBERT
STATE OF ARKANSAS MCCORKINDALE, JUDGE
APPELLEE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
BRANDON J. HARRISON, Judge
Timothy Fiveash was found guilty by a jury of driving while under the influence
and careless or prohibited driving. Fiveash’s attorney has filed a no-merit brief pursuant to
Anders v. California,
(1967), and Ark. Sup. Ct. R. 4-3(k) (2013), along with
a motion to be relieved as counsel, asserting that there is no issue of arguable merit for an
appeal. The clerk of this court mailed Fiveash a copy of his counsel’s brief at his last
known address, notifying him of his right to file a pro se statement of points for reversal,
but the package was returned as undeliverable. We grant the motion to withdraw and
affirm.
Fiveash was charged with driving while under the influence (DUI) and careless or
prohibited driving after his vehicle had spun out of control and landed in a ditch on State
Highway 392. At a jury trial held in November 2012, Arkansas State Police Officer Billy
Martin testified that he had responded to the accident and spoken with Fiveash, whose
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eyes were “completely glassed over.” Martin administered two field-sobriety tests, which
Fiveash “performed very poorly,” and he was arrested for driving while under the
influence.
Fiveash testified that the accident occurred because he “wasn’t used to driving a
small car” and the car had “no flat tires . . . so you can’t tell if one is real low or not.” He
stated that the car “just spun around and it rolled back in that low grade ditch.” He
denied having taken any illegal drugs or that he had been drinking but did admit that he
had been taking Adderall.
The jury found Fiveash guilty of DUI, for which he received a sentence of ninety
days’ imprisonment and a $1000 fine, and careless or prohibited driving, for which he
received a $100 fine. The court entered a sentencing order on 19 December 2012, and
this timely appeal followed.
Counsel correctly states that any argument as to the sufficiency of the evidence is
not preserved for this court’s review because there was no motion for directed verdict
made below. Counsel has also abstracted and discussed the one evidentiary objection
made below and adequately explained why it does not present a meritorious ground for
appeal. From our review of the record and the brief presented to us, we find that counsel
has complied with the requirements of Rule 4-3(k) and that the appeal is without merit.
Therefore, we grant counsel’s motion to withdraw and affirm Fiveash’s convictions.
Affirmed; motion to withdraw granted.
GRUBER and WOOD, JJ., agree.
Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.
No response.
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