Swarthout v. State (Majority)
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Cite as 2012 Ark. App. 46 ARKANSAS COURT OF APPEALS DIVISION III No. CACR11-441 Opinion Delivered January DAVID SWARTHOUT 11, 2012 APPELLANT APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT, [NO. CR10-299; CR09-64] V. STATE OF ARKANSAS APPELLEE HONORABLE PHILLIP T. WHITEAKER, JUDGE MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED RAYMOND R. ABRAMSON, Judge On August 14, 2009, appellant David Swarthout pled nolo contendere to a violation of the Arkansas hot-check statute, a class C felony, and was placed on supervised probation for two years. On July 22, 2010, probation officers Kim Lloyd and Kevin Trigg conducted a home visit after Swarthout failed to report and failed a drug test. During the home visit, firearms were found in the residence occupied by Swarthout and his wife. Swarthout was subsequently charged with and convicted of possession of a firearm by certain persons.1 The State also petitioned to revoke Swarthout s probation on his previous hot-check conviction, which was granted at a separate hearing. Swarthout was sentenced to 1 He was also charged with possession of drug paraphernalia. That charge was dismissed for insufficient evidence at the close of the State s case. Cite as 2012 Ark. App. 46 five years in the Arkansas Department of Correction for both the felon-in-possession-of-afirearm conviction and the violation of the conditions of his probation. A timely appeal followed. Swarthout s counsel has filed, in accordance with Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k) (2011), a motion to withdraw on the ground that the appeal is wholly without merit. As required by the rules, counsel simultaneously filed a brief purportedly containing an argument section listing all rulings adverse to Swarthout made by the circuit court with an explanation as to why each adverse ruling was not a meritorious ground for reversal. However, after reviewing the record, we note that counsel failed to abstract or address the trial court s denial of Swarthout s request that his case be transferred to a post-adjudication court the veteran s treatment court or his request for probation. Our supreme court has expressly held that a no-merit brief in a criminal case that fails to address an adverse ruling does not satisfy the requirements of Rule 4-3(k)(1) and must be rebriefed. Sartin v. State, 2010 Ark. 16. Therefore, we order counsel to cure the deficiencies by filing a substituted brief, abstract, and addendum within fifteen days from the date of this opinion. Ark. Sup. Ct. R. 4-2(b)(3) (2011). By ordering rebriefing, we are not expressing an opinion as to the merits of any issue. Counsel is free to file either a brief on the merits or another no-merit brief. Motion to withdraw denied; rebriefing ordered. H ART and R OBBINS, JJ., agree. 2
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