DEMORCUS L. SMITH APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-17-95]
HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE
Law Office, by: Gary W. Potts, for appellant.
W. GRUBER, CHIEF JUDGE
case has returned to us after rebriefing. It is a companion
case to Smith v. State, 2019 Ark.App. 401 (case No.
CR-18-925), also handed down today. In both cases, the Ashley
County Circuit Court revoked Demorcus Smith's probation
and sentenced him to eight years' imprisonment in orders
entered on July 10, 2018, to run concurrently. The circuit
court held one hearing for both cases. Here, the circuit
court revoked Smith's probation on an underlying
conviction entered on September 12, 2017, for failure to
register as a sex offender.
to Arkansas Supreme Court Rule 4-3(k) and Anders v.
California, 386 U.S. 738 (1967), Smith's counsel has
filed a motion to withdraw stating that there is no merit to
an appeal. The motion is accompanied by an abstract and
addendum of the proceedings below and a brief in which
counsel explains why there is nothing in the record that
would support an appeal. The clerk of this court served
appellant with a copy of counsel's brief and notified him
of his right to file a pro se statement of points for
reversal within thirty days; appellant has not filed a
supreme court has set forth two duties facing an appellate
court in reviewing an Anders brief: (1) satisfy
itself that the attorney has provided the client with a
diligent and thorough search of the record for any arguable
claim that might support the client's appeal; and (2)
determine whether counsel has correctly concluded that the
appeal is frivolous. Sartin v. State, 2010 Ark. 16,
at 3, 362 S.W.3d 877, 879–80 (citing Penson v.
Ohio, 488 U.S. 75, 83 (1988)). Following our review of
the record in this case, we are not convinced that the appeal
would be so wholly without merit that it satisfies these
duties. Thus, we deny counsel's motion to withdraw and
order rebriefing in merit format.
has briefed the only adverse ruling, sufficiency of the
evidence. In the companion to this case, Smith pleaded guilty
to the underlying charge of second-degree sexual assault and
was placed on probation on December 9, 2014. On September 12,
2017, his probation was revoked in part for committing the
offense of failure to register as a sex offender, and the
court entered an order extending his probation for an
additional seventy-two months in the companion case. On the
same date, the circuit court also entered an order of
conviction in the present case for failure to register as a
sex offender and sentenced Smith to six years' probation.
Although the conditions of probation were similar to the
conditions of probation in the companion case, they were not
February 27, 2018, the State filed identical petitions to
revoke Smith's probation in both cases, alleging that he
had violated "rule #10 by failing to report as
directed" and "#16 by failing to make payments as
directed." The court then held a joint hearing and
revoked Smith's probation in both cases, finding that he
had failed to report as directed. Although condition #10 in
the companion case does require Smith to report as directed
by his probation officer, there appears to be no requirement
in the conditions of probation in this case for Smith to
report to his probation officer. Condition #10 requires Smith
to "pay a fine in the amount of $2, 500 with payment
made to the Sheriff's Office."
have no power to imply conditions and subsequently revoke a
defendant's probation on conditions that were not
expressly communicated in writing to a defendant. Ross v.
State, 268 Ark. 189, 191, 594 S.W.2d 852, 853 (1980);
O'Neal v. State, 2010 Ark.App. 241; Harris
v. State, 98 Ark.App. 264, 254 S.W.3d 789 (2007). And
although the petition to revoke also alleged a violation for
failure to pay fines, fees, and costs, no evidence was
introduced to prove this nor did the court make a finding
that Smith had violated this condition. The circuit court
based its revocation of Smith's probation on his failure
to report to his probation officer, which does not appear to
be a written condition of his probation in this case.
we cannot say that an appeal in this case would be wholly
frivolous, we direct counsel to file a brief in adversarial
format discussing this and any other potential nonfrivolous
arguments. The State will then have the opportunity to file a
response brief. We express no opinion on whether any
procedural bar or other evidentiary items may exist to defeat
any assignment of error.
to withdraw denied; rebriefing in ...