Morgan v. State
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ARKANSAS COURT OF APPEALS
DIVISION IV
CACR08-1121
No.
Opinion Delivered JULY
DENNIS ERIC MORGAN
1, 2009
APPELLANT
V.
APPEAL FROM THE DREW COUNTY
CIRCUIT COURT,
[NO. CR-02-248-1]
STATE OF ARKANSAS
HONORABLE SAMUEL B. POPE,
JUDGE
APPELLEE
REBRIEFING ORDERED
RITA W. GRUBER, Judge
In January 2005, appellant Dennis Eric Morgan pleaded guilty to two counts of
forgery in the second degree, for which he was sentenced to three years’ probation. The
State filed a petition to revoke in January 2008, alleging that appellant violated the terms of
his probation by committing a felony, associating with known felons, failing to report a
change of residence, and failing to pay restitution and fines as ordered. After a hearing, the
trial court granted the petition to revoke and sentenced appellant to six years’ imprisonment.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules
of the Arkansas Supreme Court and Court of Appeals, appellant’s counsel has filed a motion
to withdraw on the ground that this appeal is wholly without merit. Rule 4-3(k)(1) requires
this motion to be accompanied by a brief which contains an argument section that lists all
rulings adverse to the appellant made by the trial court with an explanation as to why each
adverse ruling is not a meritorious ground for reversal. We order rebriefing because counsel
has not fulfilled his obligations under the rule.
Counsel for appellant stated that there were no adverse rulings by the court on which
to base an appeal and, consequently, he did not list or explain any of the court’s rulings.
While we agree that appellant neither made any objections upon which to base an appeal nor
challenged the sufficiency of the evidence, counsel must address the sufficiency of the
evidence in an appeal from a revocation. The requirements of Ark. R. Crim. P. 33.1, that
a defendant must move for a dismissal to preserve the issue of sufficiency of the evidence,
do not apply to revocation hearings. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001).
Thus, counsel was required to address sufficiency as an adverse ruling. Therefore, we order
counsel to file a substituted brief that complies with the rule within thirty days from the date
of this opinion. When the brief is filed, the motion and brief will be forwarded by the Clerk
to appellant so that he may raise within thirty days any points he chooses in accordance with
Ark. Sup. Ct. R. 4-3(k)(2).
Rebriefing ordered.
ROBBINS and BROWN, JJ., agree.
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