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Hewitt v. State

May 12, 2005

JOHNNY CALVIN HEWITT APPELLANT
v.
STATE OF ARKANSAS APPELLEE



APPEAL FROM THE CIRCUIT COURT OF CRAIGHEAD COUNTY, Nos. CR 02-642, CR 02-965 & CR 02-1062, HON. JOHN FOGELMAN, JUDGE. APPEAL DISMISSED.

Per curiam.

Johnny Calvin Hewitt entered guilty pleas to eight counts of felony theft by receiving on August 18, 2003. At his sentencing hearing on October 9, 2003, he moved to withdraw his plea. The court denied the motion, and sentenced Hewitt to two years' imprisonment on the first count, and ten years' suspended sentence on each of the remaining counts. No order was filed on the motion, but the judgment was entered October 9, 2003. Notice of appeal was filed on the court's decision not to allow withdrawal of the plea and imposition of the sentence. The court then appointed Terry Goodwin Jones to represent Hewitt on appeal.

Ms. Jones has filed a brief asserting that any appeal of the denial of post-conviction relief would be wholly without merit and asking that he be allowed to withdraw as counsel. Anders v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court Rule 4-3(j)(1) set requirements for the withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been filed on the basis that an appeal is without merit. Under the rule, a court-appointed attorney who wishes to withdraw from an appeal must abstract and brief all of the rulings that were adverse to his client. Appellant was provided a copy of counsel's brief, and has filed no response. The State has declined to file a brief since appellant has raised no points for reversal. Based on our review of the issues presented, we conclude that the appeal should be dismissed and grant the motion to withdraw.

Generally, under Ark. R. App. P.--Crim. 1, there is no right to appeal a guilty plea, except for a conditional plea of guilty premised on an appeal of the denial of a suppression motion pursuant to Ark. R. Crim. P. 24.3. Seibs v. State, ___ Ark. ___, ___ S.W.3d ___ (May 6, 2004). The record indicates there was no motion to suppress filed and that the plea was not conditional. We have recognized two other exceptions to the general rule, as set out in Seibs and Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). The two exceptions are: (1) when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself; and (2) when the appeal is an appeal of a post-trial motion challenging ...


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