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Howard v. State

Court of Appeals of Arkansas, Division III

August 28, 2019

JACKIE D. HOWARD APPELANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-17-229] HONORABLE BRENT HALTOM, JUDGE

          Phillip a. McGough, P.A., by: Phillip A. McGough, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

          MIKE MURPHY, JUDGE

         In this no-merit appeal, the Miller County Circuit Court revoked Jackie Howard's probation and sentenced him to six years in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k), Howard'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. Howard 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. Because our review of the record reveals an issue on which an appeal may not be wholly frivolous, we order rebriefing in adversary form and deny counsel's motion to withdraw.

         Howard pleaded guilty in April 2017 to third-degree domestic battery and was sentenced to a six-year term of probation. For some reason, the sentencing order was not entered until July 7, 2017. The State filed a petition to revoke Howard's probation on June 19, 2017, and on July 25, Howard admitted the violations. He received a sixty-day jail sanction with eleven days of jail time credited to the sanction, and the circuit court reinstated his probation with added costs and fees ordered to be paid.

         The State filed another petition to revoke on August 9, 2018, alleging six violations of probation. Following the revocation hearing on October 2, the circuit court revoked Howard's probation specifically for failure to pay, failure to report to probation, failure to maintain an address, and Howard's admission of drug use while on probation. The circuit court sentenced him to six years in the Arkansas Department of Correction.

         In compliance with the directive in Anders and Rule 4-3(k), counsel claims that he has thoroughly examined the record of this proceeding but found no error that would support an appeal. Counsel's no-merit brief appropriately discusses the sufficiency of the evidence to support Howard's revocation. Counsel fails, however, to adequately address Howard's jail-time credit.

         In his no-merit brief, counsel notes, "A final point in appellant's case needs to be addressed regarding the credit he received for time spent incarcerated." At the revocation hearing, after the circuit court had explained its ruling, the following colloquy occurred.

The Court: And he's got some time on this case, and that would be since the date of arrest on August 10, of 2018. That's when he was arrested on this revocation.
Defense Counsel: What about any prior time, prior to this?
The Court: Any time he had that he served on this case before that, he gets credit for that, also. Of course. I just know when the revo was served.
Defense Counsel: And, Your Honor, what I would argue that, if he got sanctioned, where you're giving him the maximum, if he doesn't get jail credit that would violate, he would essentially do more time than the statute allows.
The Court: Do you want me to look back and see when he got his first thing, I'll be ...

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