FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14CR-15-201]
HONORABLE DAVID W. TALLEY, JR., JUDGE
Burns Law Firm, PLLC, by: Meagan Burns, for appellant.
PHILLIP T. WHITEAKER, JUDGE.
Larnell Smith appeals a Columbia County Circuit Court
order revoking his probation and sentencing him to five years
in the Arkansas Department of Correction plus five years'
suspended imposition of sentence. Pursuant to Anders v.
California, 386 U.S. 738 (1967), and Rule 4-3(k) of the
Rules of the Arkansas Supreme Court, Smith's counsel has
filed a motion to be relieved as his attorney, alleging that
this appeal is without merit. Counsel has also filed a brief
in which he contends that all adverse rulings have been
abstracted and discussed. In his brief, counsel asserted that
the only adverse rulings by the trial court were related to
its decision that revocation was appropriate. We disagree.
Our review of the record reveals that there was an additional
adverse ruling that was neither abstracted nor discussed by
counsel, and we must therefore deny counsel's motion to
withdraw and order rebriefing because of counsel's
noncompliance with Rule 4-3(k).
summary of the facts and procedural history follows. Smith
pled guilty to furnishing prohibited articles in March 2016
and was sentenced to ten years' probation. The conditions
of his probation included the following: not to commit any
criminal offenses punishable by imprisonment; not to
purchase, own, control, or possess any firearm, or be in the
company of any person possessing same; and to pay his court
costs at the rate of $50 per month with all costs to be paid
within six months. The State later filed a petition to revoke
Smith's probation, alleging that Smith had violated the
terms and conditions of his probation by (1) committing the
criminal offense of possession of a firearm by certain
persons; (2) possessing a firearm; and (3) failing to pay his
court costs as ordered.
court conducted a revocation hearing in January 2017. At the
hearing, defense counsel informed the court that Smith was
prepared to plead "true" to his failure to pay
costs but reserved his right to remain silent on the alleged
firearm violations. The court then received evidence that an
officer with the Arkansas State Police initiated a traffic
stop of a vehicle driven by Smith after having observed him
drive on the wrong side of the road. Smith initially gave the
officer a false name, and he was placed under arrest for
obstruction of justice. As Smith was exiting the vehicle, the
officer spotted a .22 revolver tucked between the
driver's seat and the center console by Smith's right
knee. The court also received evidence that Smith still owed
$50 of his costs and that in November 2016-more than six
months after he had been ordered to pay costs-he owed $450.
considering the evidence presented, the court found Smith
guilty of violating the terms and conditions of his probation
by possessing a firearm and by failing to pay his fees and
costs in full within six months. The State recommended a
sentence of five years' incarceration in the Arkansas
Department of Correction with five years' suspended
imposition of sentence. Smith requested probation. The Court
rejected Smith's request and sentenced Smith per the
recommendation of the State.
appealed his revocation, and counsel has filed a no-merit
brief. In a criminal no-merit appeal, counsel is required to
abstract each adverse ruling by the circuit court and to
discuss why each particular ruling would not present a
meritorious basis for reversal. Arkansas Supreme Court Rule
4-3(k)(1); Anders, supra. We must order
rebriefing if counsel fails to do so. Sartin v.
State, 2010 Ark. 16, 362 S.W.3d 877. In the present
case, trial counsel asked that the court sentence Smith to
probation rather than incarceration. The trial court denied
the request and sentenced Smith to five years in the Arkansas
Department of Correction plus five years' suspended
imposition of sentence. Counsel neither abstracted the
request nor articulated why this adverse ruling was not
the no-merit brief in this case is deficient, we order
counsel to file a substituted abstract, brief, and addendum
within fifteen days from the date of this opinion. Ark. Sup.
Ct. R. 4-2(b)(3). The deficiency noted above should not be
taken as an exhaustive list, and we encourage counsel to
review the requirements contained in Rule 4-3(k)(1) prior to
filing a substituted brief. We express no opinion as to
whether the substituted appeal should address the merits or
should be made pursuant to Rule 4-3(k)(1). If a no-merit
brief is filed, counsel's motion and brief will be
forwarded by the clerk to Smith so that, within thirty days,
he will again have the opportunity to raise any points he
chooses in accordance with Arkansas Supreme Court Rule
4-3(k)(2). In either instance, the State shall be afforded
the opportunity to file a brief in response.
ordered; motion to withdraw denied without prejudice.
Abramson and Gladwin, JJ., agree.