Murray v. State

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Cite as 2011 Ark. App. 431 ARKANSAS COURT OF APPEALS DIVISION I CACR10-704 No. Opinion Delivered ELEA L. MURRAY, III APPELLANT June 15, 2011 APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT, [NO. CR-07-1103] V. HONORABLE DAVID N. LASER, JUDGE STATE OF ARKANSAS APPELLEE MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED JOSEPHINE LINKER HART, Judge Elea Lee Murray, III, pleaded guilty on January 2, 2008, to possession of a controlled substance, and he was sentenced to three years’ supervised probation. He was also ordered to pay fees and costs at a rate of $25 per month. Less than a year later, the State successfully petitioned to revoke Murray’s probation, and he received an additional three years’ supervised probation and additional fines and costs. The trial court kept Murray on probation, but ordered Murray to pay an additional $60 per month. Yet another revocation petition was filed by the State on September 16, 2009. It alleged that Murray violated the terms and conditions of his probation by (1) failing to pay his fines and costs as directed; (2) failing to report to probation as directed; (3) failing to pay probation fees; (4) failing to notify the sheriff and probation department of his current address and place of employment; (5) associating with Cite as 2011 Ark. App. 431 others violating criminal laws; and (6) committing the offenses of possession of marijuana with intent to deliver, possession of drug paraphernalia, simultaneous possession of drugs and a firearm, and disorderly conduct. After a hearing, the trial court revoked Murray’s probation and sentenced him to 120 months in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k), Murray’s counsel has filed a motion to withdraw on grounds that the appeal is without merit. The clerk of this court furnished appellant with a copy of his counsel’s brief and notified him of his right to file pro se points for reversal within thirty days. Murray did not avail himself of the opportunity to submit pro se points. The State has not filed a brief. The motion submitted by Murray’s counsel was accompanied by an abstract and brief purportedly referring to everything in the record that might arguably support an appeal. The brief, however, is deficient. The four-page abstract fails to conform to the requirements of Arkansas Supreme Court Rule 4-2 in that it does not adequately reflect all of the material parts of the 77-page hearing transcript. Among the omissions are two adverse evidentiary rulings. Further, the abstract is not only incomplete, but also it is often misleading. Accordingly, we direct counsel to submit a substituted abstract that conforms with the requirements of Rule 4-2. We further note that an Anders brief must contain a list of all adverse rulings, and the argument section of the brief must contain an explanation of why each adverse ruling is not a meritorious ground for reversal. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). If 2 Cite as 2011 Ark. App. 431 counsel fails to address all possible grounds for reversal, this court will deny the motion to withdraw and order rebriefing. Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000). We hold that the argument section of the brief is also deficient in that it does not address the omitted adverse rulings, and the single adverse ruling that it does discuss, the revocation of Murray’s probation, is perfunctory at best. We therefore order Murray’s counsel to correct this deficiency as well in his substituted brief. In ordering rebriefing, we do not preclude appellate counsel from submitting a merit brief. Motion to withdraw denied; rebriefing ordered. G LADWIN and A BRAMSON, JJ., agree. 3

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