Stribling v. State
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Cite as 2011 Ark. App. 386
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR10-370
Opinion Delivered
OTIS STRIBLING
APPELLANT
May 25, 2011
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
[CR-2008-335-1]
V.
HONORABLE BERLIN C. JONES,
JUDGE
STATE OF ARKANSAS
APPELLEE
REBRIEFING ORDERED; MOTION
TO WITHDRAW AS COUNSEL
DENIED
DAVID M. GLOVER, Judge
Appellant Otis Stribling was tried by a jury, found guilty of possession of a controlled
substance (cocaine), and was sentenced to thirty-six months in the Arkansas Department of
Correction. This is the second time this no-merit case has been before our court. In January
of this year, we remanded the case to settle and supplement the record, and for rebriefing.
Stribling v. State, 2011 Ark. App. 57. Appellant’s counsel has corrected the deficiencies noted
in that opinion, and the case is now before us again in no-merit form.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Arkansas
Rules of the Supreme Court and Court of Appeals, appellant’s counsel has filed a motion to
withdraw on the grounds that the appeal is without merit. Appellant has filed a list of pro se
points in response to his attorney’s motion, and the State has filed a brief in response.
Cite as 2011 Ark. App. 386
Appellant’s counsel’s motion was accompanied by a brief purportedly referring to
everything in the record that might arguably support an appeal, including a list of all rulings
adverse to appellant made by the trial court on all objections, motions, and requests made by
either party with an explanation as to why each adverse ruling is not a meritorious ground for
reversal. An Anders brief may be submitted in lieu of an appeal on the merits only if such an
appeal would be “wholly frivolous.” Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001).
We remand this case for a second time because upon review, we have discovered that during
the sentencing phase there was an adverse ruling that was not abstracted that would not be
wholly frivolous.
After the jury found Stribling guilty of possession of cocaine, they gave the trial court
two sentencing options—three years in the Arkansas Department of Correction and a $5000
fine, or an alternative sentence of five years’ probation and a $5000 fine. The trial court stated
that it would not consider “straight probation,” at which time the State suggested probation
with the condition of mandatory drug treatment and any other requirement associated with
a rehabilitation program. At sentencing, the trial court ordered Stribling to serve three years’
incarceration in the Arkansas Department of Correction with a judicial transfer to a CCC
unit, where he would engage in a year-long intensive drug-rehabilitation program. One of
the special conditions noted on Stribling’s judgment and commitment order was that Stribling
was to complete a mandatory drug program. See Richie v. State, 2009 Ark. 602, ___ S.W.3d
___.
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Cite as 2011 Ark. App. 386
This court has ordered rebriefing in adversary form when it has been determined that
an appeal would not be wholly frivolous. Eads, supra. When an appeal is submitted to this
court under the Anders format and we believe that an issue is not wholly frivolous, we are
required to deny appellant’s counsel’s motion to withdraw and order rebriefing in adversary
form. Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994). Because appellant’s counsel
fails to demonstrate that an appeal would be wholly frivolous, we remand for adversarial
rebriefing.
Rebriefing ordered; motion to withdraw as counsel denied.
G RUBER and H OOFMAN , JJ., agree.
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