Opinion
CACR04-666
Opinion Delivered January 11, 2006
Appeal from the Johnson County Circuit Court, [No. CR2002-142], Honorable John S. Patterson, Circuit Judge, Affirmed; Motion granted.
In 2003, appellant, Jedadiah S. Smith, pleaded guilty to seven counts of Class D felony breaking or entering and seven counts of misdemeanor theft of property, and the circuit court placed him on probation for sixty months. In 2004, the court revoked his probation and sentenced him to twenty-four months' imprisonment to be followed by a suspended imposition of sentence of twenty-four months. Appellant's counsel has filed a motion and a brief asserting that any appeal of appellant's revocation would be wholly without merit and asking that he be allowed to withdraw as counsel. The requirements for withdrawal of counsel for a defendant in a criminal case are set out in Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j)(1) (2005). Under the rule, when a notice of appeal has been filed and counsel seeks to withdraw on the basis that the appeal is wholly without merit, counsel must submit to this court a brief that contains all circuit-court rulings adverse to appellant and that explains why each adverse ruling is not a meritorious ground for reversal.
In his brief, counsel argues that the evidence presented at the revocation hearing was sufficient to support the probation revocation. We agree, as appellant's positive drug-screen test for marijuana and his admission at the hearing that he smoked marijuana on one other occasion following the drug screen established that he violated the condition of his probation prohibiting use of controlled substances. See Morgan v. State, 73 Ark. App. 107, 42 S.W.3d 569 (2001) (holding alternatively that there was sufficient evidence to revoke probation because the defendant violated a probation condition by testing positive for marijuana). Further, counsel for appellant argues that appellant's sentence was proper, as it was within the range of punishment for a Class D felony. See Ark. Code Ann. § 5-4-401(a)(5) (Repl. 1997). We agree. As appellant has addressed all adverse rulings, we hold that counsel has complied with Rule 4-3(j)(1) and grant his motion to withdraw.
Further, in accordance with Arkansas Supreme Court Rule 4-3(j)(2), appellant was provided a copy of counsel's brief, and as permitted by that rule, he filed pro se points for reversal. Appellant contends that the revocation was improper because he has not been tried on new charges filed against him; that he should not be sentenced to imprisonment and instead should be allowed to enlist in the military; and that his sentence was longer than he deserved. Because these arguments were not considered by the circuit court, they were not preserved for our review. See Fisher v. State, 84 Ark. App. 318, 139 S.W.3d 815 (2004).
Affirmed; motion to withdraw as counsel is granted.
GLOVER and BAKER, JJ., agree.