James McCloud, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION II

JAMES MCCLOUD, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-690

MARCH 7, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR1997-1204]

HONORABLE SAMUEL TURNER, JR., CIRCUIT JUDGE

AFFIRMED

James McCloud, Jr. appeals from the revocation of his probation. Appellant was originally sentenced to forty-two months in the Arkansas Department of Correction after he pled guilty to possession of a controlled substance with the intent to sell or deliver, a Class Y felony, and was placed on supervised probation for a period of seven years. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Supreme Court and the Court of Appeals, his lawyer has filed a motion to withdraw as counsel on the ground that there is no merit to this appeal.

Appellant was notified of his right to file a pro se list of points on appeal within thirty days, and he failed to do so. Counsel's motion was accompanied by a brief and abstract of the record referring to matters in the record that might arguably support this appeal. Counsel

states that no reversible error was committed in this case.

A petition for revocation was filed by the State on February 9, 2000. A probation revocation hearing was held on February 29, 2000, in which appellant was found to have violated his conditions of probation, including failure to pay fines and costs and failure to not violate any state, federal or municipal law.

If the court finds by a preponderance of the evidence that the appellant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation. Ark. Code Ann. § 5-4-309(d) (Supp. 1999). First, the record supports the trial court finding that appellant failed to obey all state, federal or municipal laws. Officer Michelle Forthman testified as to an incident which occurred on June 23, 1999. She testified that when officers arrived at the residence of the victim, T. P., per a dispatch order, T. P. had no shirt, and appellant was standing in the driveway. Both T. P. and appellant told Officer Forthman there had been an altercation, and Officer Forthman arrested both parties. Officer Larry Allen testified that he responded to a call on October 26, 1999, concerning complaints of people hanging around certain houses. Officer Allen also testified that he arrested appellant when he refused to leave the front porch of a home not belonging to him. Second, the record supports the court finding that appellant failed to pay all fines, costs and restitution. Appellant's probation officer testified that appellant had been delinquent in paying his probation fees even though appellant was employed. Appellant gave no reason for his failure to pay the fines and costs as required in the probation conditions. We find appellant inexcusably failed to comply with his probation conditions.

During the revocation hearing, there were five objections made on behalf of appellant. On each occasion, the trial court ruled favorably for appellant. The first and second objections were based on hearsay; each objection was sustained. The third objection was based on a conclusory statement; this objection was also sustained. The fourth and fifth objections were based on hearsay, and the court sustained the fourth objection and the prosecutor rephrased the subject of the fifth objection before any statements were made.

From our review of the record and the brief presented to this court, we find that there has been full compliance with the requirements of Rule 4-3(j). The appeal is without merit, and counsel's motion to be relieved is granted.

Affirmed.

Griffen and Crabtree, JJ., agree.