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ARKANSAS COURT OF APPEALS DIVISION IV No. CR-13-257

TIMOTHY ALLEN FIVEASH Opinion Delivered February 19, 2014

APPELLANT APPEAL FROM THE BOONE COUNTY CIRCUIT COURT V. [NO. CR2012-149-4]

HONORABLE ROBERT STATE OF ARKANSAS McCORKINDALE, II, JUDGE

APPELLEE MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED

PHILLIP T. WHITEAKER, Judge

Timothy Allen Fiveash appeals from his Boone County Circuit Court convictions for

driving on a suspended license, careless or prohibited driving, failure to wear a seat belt, no

license tags, no proof of liability insurance, and obstruction of government operation.1

Counsel for Fiveash has filed a no-merit brief and a motion to withdraw as counsel pursuant

to Arkansas Supreme Court Rule 4-3(k) on the ground that an appeal would be wholly

without merit. Because counsel has failed to abstract and address a hearsay objection made

at trial, we must order rebriefing.

1 These charges were tried together with a first-offense DWI charge and a careless-and- prohibited-driving charge stemming from a separate incident. Fiveash was also convicted on those charges. An appeal of those convictions is pending in companion case, Fiveash v. State,

(CR-13-251). Cite as

Appellate counsel has filed a brief with this court stating that no evidentiary objections

were made at trial. However, our independent review of the record reveals that defense

counsel made an objection on hearsay grounds to testimony elicited by the State from

Trooper Billy Martin of the Arkansas State Police. The State argued that the testimony was

not being introduced for the truth of the matter asserted and, therefore, did not constitute

hearsay. The trial court overruled the objection. Counsel has failed to abstract this adverse

ruling or explain why it has no merit.

Our Rule 4-3(k), which is based on Anders v. California,

(1967), sets

forth the framework for constitutionally permissible no-merit briefs. In order to satisfy Rule

4-3(k) and the framework set forth in Anders, counsel is required to file an abstract and

addendum of the proceedings below, including all objections and motions decided adversely

to appellant, and a brief in which counsel explains why there is nothing in the record that

would support an appeal. A no-merit brief that fails to address an adverse ruling does not

satisfy the requirements of Rule 4-3(k)(1) and must be rebriefed. Sartin v. State,

,

.

Because counsel has failed to properly abstract and address all adverse rulings as

required under our rules, we order counsel to cure the deficiency by filing a substituted brief,

abstract, and addendum within fifteen days from the date of this opinion. Ark. Sup. Ct. R.

4-2(b)(3) (2013). The deficiency we have noted is not to be taken as an exhaustive list. We

encourage counsel, prior to filing a substituted brief, to examine Rules 4-2 and 4-3 to ensure

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that he has complied with our rules and that no additional deficiencies are present. Wells v.

State,

.

Motion to withdraw denied; rebriefing ordered.

HARRISON and WOOD, JJ., agree.

Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.

No response.

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