Baney v. State

Cite as 2016 Ark. App. 405
ARKANSAS COURT OF APPEALS
DIVISION IV
No.CR-16-38
Opinion Delivered: SEPTEMBER 14, 2016
APPEAL FROM THE SHARP
JESSIE EARL BANEY COUNTY CIRCUIT COURT
APPELLANT [NOS. CR-12-84, CR-12-173,
CR-13-106]
V.
HONORABLE HAROLD S. ERWIN,
JUDGE
STATE OF ARKANSAS
APPELLEE SUPPLEMENTATION OF RECORD
AND REBRIEFING ORDERED
KENNETH S. HIXSON, Judge
On July 8, 2013, appellant Jessie Earl Baney was convicted of two counts of
residential burglary, two counts of theft of property, one count of breaking or entering, and
one count of aggravated cruelty to a dog, cat, or horse. Mr. Baney was placed on ten years’
probation for each of the burglary and theft convictions, and placed on six years’ probation
for each remaining conviction. On October 2, 2015, the State filed a petition to revoke
appellant’s probation, alleging that he violated the conditions of his probation by incurring
subsequent felony charges, possessing a firearm, failing to be gainfully employed or enrolled
as a student, failing to seek out a stable residence, and failing to pay fines and costs. After a
hearing, the trial court found that Mr. Baney violated his conditions and revoked each of
his probations. Pursuant to the revocation, the trial court entered an order on October 8,
2015, sentencing appellant to a total of thirty years in prison.
Cite as 2016 Ark. App. 405
Mr. Baney now appeals from his revocation and resulting sentences, and his sole
argument on appeal is that there was insufficient evidence to support the trial court’s finding
that he violated his conditions of probation. We remand to settle the record and supplement
the addendum.
Arkansas Supreme Court Rule 4-2(a)(8) requires that the addendum to appellant’s
brief include all documents that are essential for the appellate court to understand the case
and to decide the issues on appeal. Mr. Baney’s addendum does not contain his written
conditions of probation, which is essential to our review of this case and his argument that
the trial court erred in finding that his conditions were violated. See Reyes v. State, 2012
Ark. App. 125. Dees v. State, 2012 Ark. App. 85. Moreover, appellant’s written conditions
of probation are not contained in our record. If anything material to either party is omitted
from the record by error or accident, we may direct that the omission be corrected, and if
necessary, that a supplemental record be certified and transmitted. Ark. R. App. P.−Civ.
6(e) (made applicable to criminal cases by Ark. R. App. P.−Crim. 4(a)).
Because of the deficiency in the record, we remand to the circuit court to settle and
supplement the record with the necessary document containing appellant’s written
conditions of probation, to be completed within thirty days. Upon filing of the
supplemental record, appellant shall have fifteen days in which to file a substituted abstract,
addendum, and brief. See Ark. Sup. Ct. R. 4-2(b)(3). If Mr. Baney fails to do so, the
judgment from which he now appeals may be affirmed for noncompliance with the rule.
Id. After Mr. Baney files a substituted abstract, brief, and addendum, the State may revise
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Cite as 2016 Ark. App. 405
or supplement its brief within fifteen days of the filing of appellant’s brief or may rely on its
previously filed brief.
Supplementation of record and rebriefing ordered.
KINARD and WHITEAKER, JJ., agree.
R.T. Starken, for appellant.
Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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