Green v. State
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CACR08-1157
Opinion Delivered
July 1, 2009
APPEAL FROM THE DREW COUNTY
CIRCUIT COURT
[NO. CR2005-220-1]
BOBBY LEE GREEN
APPELLANT
HONORABLE SAMUEL B. POPE,
JUDGE
V.
STATE OF ARKANSAS
REBRIEFING ORDERED
APPELLEE
LARRY D. VAUGHT, Chief Judge
On March 13, 2006, in Drew County Circuit Court, appellant Bobby Lee Green pled
guilty to the offense of possession of cocaine with the intent to deliver, a class Y felony.
Green was placed on probation for a period of ten years subject to certain designated terms
and conditions. On February 29, 2008, the State filed a petition to revoke Green’s probation.
After a hearing, the trial court revoked Green’s probation, finding that he had violated
probation conditions. Green was ordered to serve seventy-two months in prison plus an
additional forty-eight-month suspended sentence.
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, Green’s counsel filed a motion to
withdraw, arguing that an appeal in this case is wholly without merit. This type of motion
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must be accompanied by an abstract and brief referring to everything in the record that might
arguably support an appeal, including all motions, objections, and requests decided adversely
to appellant, and a statement of reasons why none of those rulings would be a meritorious
ground for reversal. Ark. Sup. Ct. R. 4-2(k). Green was provided with a copy of his counsel’s
brief and was notified of his right to file a list of points on appeal within thirty days, but he
has not done so.
Green’s counsel states in his brief that there were only two adverse rulings at the
revocation hearing—the revocation itself and the trial court’s admission of testimony from
Green’s probation officer that while on probation Green twice tested positive for cocaine.
However, our review of the record reveals two additional adverse rulings that were not
addressed by Green’s counsel (only one of which was abstracted while the other was not).
One was the trial court’s admission of testimony of the arresting officer concerning Green’s
mental incapacity. The second involved the State’s relevancy objection regarding the
officer’s testimony about whether Green had been charged with possession of cocaine
discovered upon his arrest. Based on these omissions, we order rebriefing in accordance with
Anders, supra, and Rule 4-3(k).
We also note that the terms and conditions of Green’s probation are not included in
the addendum in violation of Rule 4-2(a)(8) of the Rules of the Arkansas Supreme Court and
Court of Appeals.1 The petition for revocation only refers to terms and conditions # 1, 6, 15,
1
We further note that the terms and conditions of probation are not included in the
record.
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16, and 23. And while we can ascertain what these conditions are by reviewing the Drew
County Violation Report,2 this is not in compliance with our rules.
Rule 4-2(a)(8) requires that an addendum containing all the relevant orders, pleadings,
documents, and exhibits in the record that are essential to an understanding of the case. We
have long held that the suspension or probation order and its terms or conditions are essential
to our review of a revocation order based on a finding that those terms had been violated, and
that those items must therefore be included in the abstract or addendum. Taylor v. State, 63
Ark. App. 82, 973 S.W.2d 840 (1998). An order cannot be reviewed for error when the
addendum fails to include the documents on which the order was based. Bryan v. City of
Cotter, ___ Ark. ____, ___ S.W.3d ____ (Apr. 2, 2009).
Based on the above, we order rebriefing, allowing Green’s counsel thirty additional
days in which to file a substituted brief, abstract, and addendum to cure any and all
deficiencies. Ark. Sup. Ct. R. 4-2(b)(3).
Rebriefing ordered.
P ITTMAN and G LADWIN, JJ., agree.
2
The violation report listed the conditions as (#1) not commit any felony,
misdemeanor or other criminal offense punishable by confinement in jail or prison; (#6)
not possess, buy, consume, sell, or distribute any alcoholic beverages, or controlled
substances; (#15) pay $150.00 court costs to the Sheriff’s Office; (#16) pay $100.00
Public Defender Fee to the Sheriff’s Office; and (#23) pay $250.00 DNA Fee.
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