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Rowton v. State

Court of Appeals of Arkansas, Division II

November 13, 2019

ANITA ROWTON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NOS. 43CR-13-496 & 43CR-18-305] HONORABLE BARBARA ELMORE, JUDGE

          Robert M. "Robby" Golden, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, JUDGE

         Appellant Anita Rowton was serving probation in case number 43CR-13-496 (hereinafter referred to as 13-496). While on probation, appellant was involved in a motor-vehicle accident, wherein she was cited with driving while intoxicated (DWI), refusal to submit to a chemical test, and careless and prohibited driving. Appellant was convicted of all three offenses in a bench trial in the Lonoke County Circuit Court in case number 43CR-18-305 (hereinafter referred to as 18-305). Appellant was sentenced to an aggregate term of twelve months in the county jail. Immediately following the bench trial, appellant was tried and found guilty of violating the terms and conditions of her probation in 13-496. The circuit court sentenced appellant to serve an aggregate term of eighteen months' imprisonment. On appeal, appellant contends that there was insufficient evidence to convict her of DWI in 18-305 and that there was insufficient evidence that she violated the terms and conditions of her probation in 13-496. However, we are unable to reach the merits at this time. We remand to settle and supplement the record, and we order rebriefing after the record is settled and supplemented.

         I. Relevant Facts

         A. Case Number 43CR-18-305

         On February 2, 2018, appellant's vehicle ran off the road when she was driving around a sharp curve. The front air bags deployed, and the vehicle was left inoperable and wedged on top of a tree stump. Law enforcement arrived and observed her behavior at the scene.[1] The officer testified that appellant was generally disoriented, incoherent, and had slurred speech. Appellant was transported to the sheriff's department where she was given a breathalyzer test. Appellant tested 0.00%. The officer then requested that appellant submit to a urinalysis, and appellant refused. Appellant was arrested and charged with DWI in violation of Arkansas Code Annotated section 5-65-103 (Repl. 2016), refusal to submit to chemical test in violation of Arkansas Code Annotated section 5-65-205, and careless and prohibited driving in violation of Arkansas Code Annotated section 27-51-104. The circuit court held a bench trial on December 5, 2018.

         According to appellant's statement of the case in her brief on appeal, she was found guilty by the Lonoke County District Court, and she appealed to the circuit court. According to the transcript contained in our record on appeal, at the conclusion of the bench trial, the circuit court orally found appellant guilty.

Now I'm going to take into consideration everything. I'm going to take into consideration what I saw on the video. And she was swaying. I -- I was beginning to sway with her. Okay? She was swaying. And she did have -- was slurred. And I just -- I don't think her motor skills and her judgment was up to par. I believe that those combinations of everything, if you take into combination everything -- her statement, her reactions, her rambling on, consistently rambling on, talking when other people were trying to tell her not to talk, her behavior indicated to me that she was intoxicated. So I'm finding her guilty.

         Despite our record containing a circuit court trial transcript finding appellant guilty, on January 9, 2019, the circuit court filed a sentencing order indicating that appellant voluntarily, intelligently, and knowingly entered a guilty plea on each of the three charges. The sentencing order reflects that appellant was sentenced to serve twelve months in the county jail for DWI and three months in the county jail for refusal to submit to a chemical test. Further, the circuit court did not check any box regarding whether it had found her guilty or sentenced her on the charges, no sentence is listed for careless and prohibited driving, the total time to be served for all offenses was left blank, and the circuit court checked the box that this case was not an appeal from district court. Hence, the record on appeal contains inconsistencies that must be settled as discussed below.

         B. Case Number 43CR-13-496

         On April 7, 2014, appellant pleaded guilty in the Lonoke County Circuit Court in 13-496 to breaking or entering in violation of Arkansas Code Annotated section 5-39-202, theft of property in violation of Arkansas Code Annotated section 5-36-103(b)(3)(A), third-degree escape in violation of Arkansas Code Annotated section 5-54-112, and public intoxication in violation of Arkansas Code Annotated section 5-71-212. Appellant was placed on probation for seventy-two months for the breaking-or-entering and theft-of-property charges, twelve months for the third-degree-escape charge, and thirty days for the public-intoxication charge.

         On February 16, 2018, the State filed a petition to revoke appellant's probation, alleging that appellant had violated her terms and ...


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