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Rigsby v. State

Court of Appeals of Arkansas, Division II

May 22, 2019

Joshua RIGSBY, Appellant
v.
STATE of Arkansas, Appellee

Page 454

[Copyrighted Material Omitted]

Page 455

          APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-709], HONORABLE CARLTON D. JONES, JUDGE

         Phillip A. McGough, P.A., North Little Rock, by: Phillip A. McGough, for appellant.

         Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

         OPINION

         MIKE MURPHY, Judge

          This no-merit appeal returns to us after we ordered rebriefing and denied counsel’s motion to withdraw. Rigsby v. State, 2019 Ark.App. 17. The briefing deficiencies have been corrected by counsel, and we affirm the revocation of appellant Joshua Rigsby’s probation and grant counsel’s motion to withdraw.

         Rigsby pleaded guilty in February 2017 to the crime of theft by receiving and received a six-year term of probation. The State filed a petition to revoke in May 2017 alleging three violations of probation. Following a hearing, the Miller County Circuit Court revoked Rigsby’s probation and sentenced him to six years in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k), Rigsby’s counsel has filed a motion to be relieved as his attorney in which he alleges 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. Rigsby was provided with a copy of his counsel’s brief and motion and informed of his right to file pro se points, which he has chosen to do.

          On appeal of a revocation, we review whether the circuit court’s findings are clearly against the preponderance of the evidence. Vail v. State, 2019 Ark.App. 238. To revoke probation, the State has the burden of proving by a preponderance of the evidence that a condition of probation was violated. Id. Because the burden of proof is by a preponderance of the evidence rather than beyond a reasonable doubt, evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id. Proof of just one violation of the probation terms and conditions is sufficient to support revocation. Id.

          A request to withdraw because the appeal is wholly without merit must be accompanied by a brief that contains a list of all rulings adverse to appellant and an explanation as to why each ruling is not a meritorious ground for reversal. Ark. S.Ct. R. 4-3(k)(1). The brief must 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. Id. In deciding whether to allow counsel to withdraw from appellate representation, the test is not whether counsel thinks the circuit court committed no reversible error but whether the points to be raised on appeal would be wholly frivolous. Brown v. State, 2018 Ark.App. 367, 553 S.W.3d 787. Pursuant to Anders, we are required to determine whether the case is wholly frivolous after a full examination of all the proceedings. T.S. v. State, 2017 Ark.App. 578, 534 S.W.3d 160.

         As an initial matter, we need not address the merits of Rigsby’s points on appeal. He first argues that he did not receive adequate notice of the revocation hearing under

Page 456

Arkansas Code Annotated section 16-93-308(a)(3). This argument is not preserved for our review because it was not made to the circuit court at the revocation hearing. Below, Rigsby objected to the hearing on the ...


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