Carroll v. State

2013 Ark. App. 640

• Court: Court of Appeals of Arkansas
• Decided: November 6, 2013
• Docket: CR-13-560
• Status: Published

Opinion

Cite as 2013 Ark. App. 640

ARKANSAS COURT OF APPEALS DIVISION I No.CR-13-560

JERMAINE CARROLL Opinion Delivered November 6, 2013 APPELLANT APPEAL FROM THE JEFFERSON V. COUNTY CIRCUIT COURT [NO. CR-2010-0515-1]

STATE OF ARKANSAS HONORABLE BERLIN C. JONES, APPELLEE JUDGE

AFFIRMED AS MODIFIED; MOTION GRANTED

RITA W. GRUBER, Judge

By written order of the Circuit Court of Jefferson County, entered on July 11, 2011,

Jermaine Carroll was placed on twenty-four months’ probation for the Class C felony theft

by receiving and on twelve months’ probation for misdemeanor unlawful copying or sale of

recordings. On December 17, 2012, the State filed a petition to revoke probation, alleging

that Carroll had violated required conditions. At the conclusion of a March 12, 2013

revocation hearing, the circuit court found Carroll in violation of conditions and revoked

probation for both offenses. The court’s written order of March 21, 2013, reflects that

probation was revoked on the felony, for which Carroll received a sentence of seven years’

imprisonment in the Arkansas Department of Correction, and that probation was revoked on

the misdemeanor, for which he was sentenced to twelve months in the county jail. The

sentences were to run concurrently. Cite as 2013 Ark. App. 640

Pursuant to Anders v. California, 386 U.S. 738 (1967), and as allowed by Rule 4-3(k)

(2013) of the Rules of the Arkansas Supreme Court and Court of Appeals, Carroll’s counsel

has filed a no-merit brief and a motion to withdraw on the ground that an appeal in this

matter would be wholly without merit. Carroll has not filed points for reversal despite being

notified by the clerk of this court of his right to do so. Counsel’s no-merit brief addresses two

adverse decisions by the circuit court: the revocation itself and an evidentiary ruling during

a probation officer’s testimony about how often Carroll was required to report. Counsel fairly

discusses the evidence supporting the court’s findings that probation conditions were violated,

and he explains why the court was correct in overruling his objection to the officer’s

testimony.

We note our duty in a no-merit appeal to fully examine the proceedings in order to

decide if an appeal would be wholly frivolous. Tijerina-Palacios v. State, 2012 Ark. App. 444.

From our review of the record and the brief presented to us, we find that counsel has

complied with the requirements of Rule 4-3(k)(1) and hold that there is no merit to this

appeal. Accordingly, counsel’s motion to withdraw is granted and the revocation is affirmed.

In reviewing the record, however, we have determined that the circuit court’s order

of March 21, 2013, is illegal on its face regarding the misdemeanor. The twelve-month

probation for the misdemeanor, along with the twenty-four-month probation on the felony,

became effective with entry of the circuit court’s July 11, 2011 order. The twelve-month

probation was complete before the State filed its petition to revoke, and only the twenty-four-

month probation for the felony remained in effect. See Ark. Code Ann. § 16-93-308(d)

2 Cite as 2013 Ark. App. 640

(Supp. 2011) (stating that “[i]f a court finds by a preponderance of the evidence that the

defendant has inexcusably failed to comply with a condition of his or her suspension or

probation, the court may revoke the suspension or probation at any time prior to the

expiration of the period of suspension or probation”).1 Thus, the revocation of probation for

the misdemeanor resulted in an illegal sentence.

The judgment is modified to delete the revocation and sentence for misdemeanor

unlawful copying or sale of recordings. See Campbell v. State, 289 Ark. 454, 712 S.W.2d 302

(1986) (modifying the circuit court’s judgment of four felony convictions in a no-merit appeal

upon our supreme court’s finding that the State did not prove one of the four convictions).

See also Ark. Sup. Ct. R. 4-3(k)(4) (authorizing the appellate court, upon consideration of a

motion to withdraw in a no-merit case, to affirm or reverse the circuit court’s judgment on

the appellate court’s own motion).

Affirmed as modified; motion granted.

HARRISON and WHITEAKER, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

No response.

1 The statute allows revocation subsequent to the expiration of the period of suspension or probation in certain situations, none of which apply to the present case. Ark. Code Ann. § 16-93-308(f) (Supp. 2011).