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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 Cite as

years in the Arkansas Department of Correction with any additional sentence suspended for

a period of eight years.

Pursuant to Anders v. California,

(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

(d) (Supp. 2013) (formerly

(d) (Supp. 2009)); but see

(Supp. 2013)

(formerly

(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,

, 268–69,

(1980); Sisk v. State,

, 279–80,

,

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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