Fiveash v. State

2014 Ark. App. 438

Opinion

Cite as 2014 Ark. App. 438

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-13-251

Opinion Delivered September 3, 2014

TIMOTHY ALLEN FIVEASH APPEAL FROM THE BOONE APPELLANT COUNTY CIRCUIT COURT [NO. CR-2012-112-3] V. HONORABLE ROBERT STATE OF ARKANSAS MCCORKINDALE, JUDGE APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED

BRANDON J. HARRISON, Judge

Timothy Fiveash was found guilty by a jury of driving while under the influence

and careless or prohibited driving. Fiveash’s attorney has filed a no-merit brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(k) (2013), along with

a motion to be relieved as counsel, asserting that there is no issue of arguable merit for an

appeal. The clerk of this court mailed Fiveash a copy of his counsel’s brief at his last

known address, notifying him of his right to file a pro se statement of points for reversal,

but the package was returned as undeliverable. We grant the motion to withdraw and

affirm.

Fiveash was charged with driving while under the influence (DUI) and careless or

prohibited driving after his vehicle had spun out of control and landed in a ditch on State

Highway 392. At a jury trial held in November 2012, Arkansas State Police Officer Billy

Martin testified that he had responded to the accident and spoken with Fiveash, whose

1 Cite as 2014 Ark. App. 438

eyes were “completely glassed over.” Martin administered two field-sobriety tests, which

Fiveash “performed very poorly,” and he was arrested for driving while under the

influence.

Fiveash testified that the accident occurred because he “wasn’t used to driving a

small car” and the car had “no flat tires . . . so you can’t tell if one is real low or not.” He

stated that the car “just spun around and it rolled back in that low grade ditch.” He

denied having taken any illegal drugs or that he had been drinking but did admit that he

had been taking Adderall.

The jury found Fiveash guilty of DUI, for which he received a sentence of ninety

days’ imprisonment and a $1000 fine, and careless or prohibited driving, for which he

received a $100 fine. The court entered a sentencing order on 19 December 2012, and

this timely appeal followed.

Counsel correctly states that any argument as to the sufficiency of the evidence is

not preserved for this court’s review because there was no motion for directed verdict

made below. Counsel has also abstracted and discussed the one evidentiary objection

made below and adequately explained why it does not present a meritorious ground for

appeal. 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) and that the appeal is without merit.

Therefore, we grant counsel’s motion to withdraw and affirm Fiveash’s convictions.

Affirmed; motion to withdraw granted.

GRUBER and WOOD, JJ., agree.

Cullen & Co., PLLC, by: Tim J. Cullen, for appellant. No response. 2