Fiveash v. State ?(1)? , 2014 Ark. App. 124 ( 2014 )

Cite as 2014 Ark. App. 124
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-251
Opinion Delivered February 19, 2014
TIMOTHY ALLEN FIVEASH APPEAL FROM THE BOONE
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2012-112-3]
V.
HONORABLE ROBERT
MCCORKINDALE, JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED; MOTION
TO BE RELIEVED DENIED
BRANDON J. HARRISON, Judge
Timothy Fiveash was found guilty by a jury of driving while intoxicated and careless
or prohibited driving.1 On appeal, Fiveash’s counsel argues that there are no meritorious
grounds for appeal and asks to be relieved as appellate counsel. Because counsel has failed to
comply with the requirements of Rule 4-3(k) of the Arkansas Rules of the Supreme Court,
we deny the motion to be relieved and order rebriefing.
Fiveash was charged with driving while intoxicated and careless or prohibited driving
after his vehicle 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
responded to the accident and spoke with Fiveash, whose eyes were “completely glassed
1
These charges were tried together with several other charges, including driving on a
suspended license, careless or prohibited driving, and failure to wear a seat belt, that stemmed
from a separate incident. An appeal of his conviction on those charges is pending in
companion case CR-13-257.
Cite as 2014 Ark. App. 124
over.” Martin also administered two field-sobriety tests, which Fiveash “performed very
poorly.” The jury found Fiveash guilty of driving while intoxicated, 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.
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. A request to withdraw
on the ground that the appeal is wholly without merit shall be accompanied by a brief that
contains a list of all rulings adverse to appellant and an explanation as to why each ruling is
not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1) (2013).
Counsel did not abstract a ruling during the trial that was adverse to Fiveash. During
Martin’s testimony, Fiveash raised an objection on hearsay grounds that was overruled by the
court. This adverse ruling is neither abstracted nor discussed in the argument section of the
brief filed by counsel. Our supreme court has held that the failure to abstract and discuss any
adverse ruling in an Anders brief necessitates rebriefing. Sartin v. State, 2010 Ark. 16, 362
S.W.3d 877. So, we deny the motion to be relieved as counsel without prejudice and direct
counsel to submit a substituted abstract and brief correcting this as well as any other
deficiencies within fifteen days from the date of this opinion.
Rebriefing ordered; motion to be relieved denied without prejudice.
WHITEAKER and WOOD, JJ., agree.
Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.
No response.
2