[Copyrighted Material Omitted]
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-709],
HONORABLE CARLTON D. JONES, JUDGE
A. McGough, P.A., North Little Rock, by: Phillip A. McGough,
Rutledge, Atty Gen., by: Christian Harris, Asst Atty Gen.,
no-merit appeal returns to us after we ordered rebriefing and
denied counsels 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 Rigsbys probation and grant counsels
motion to withdraw.
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 Rigsbys 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), Rigsbys 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 counsels
brief and motion and informed of his right to file pro se
points, which he has chosen to do.
appeal of a revocation, we review whether the circuit courts
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
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.
initial matter, we need not address the merits of Rigsbys
points on appeal. He first argues that he did not receive
adequate notice of the revocation hearing under
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 ...