Opinion
John W. Achor, Public Defender by James Phillips, Deputy Public Defender, Little Rock, for appellants.
Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.
PER CURIAM.
Appellants Titus Robert Torrence and James Shields were convicted in a trial to the court of theft by receiving on July 10, 1979, and were sentenced to five years imprisonment to be served consecutive to any sentence they were then serving. At a revocation hearing held after sentencing, the court considered the testimony presented at trial and revoked the ten year sentences (suspended on condition of good behavior) that each appellant had received on March 6, 1979, for burglary and theft of property. From these proceedings appellants bring this appeal.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellants' counsel has filed a brief alleging that the appeal to this court is frivolous and without merit and has requested that he be relieved as attorney of record. On November 14, 1979, appellants were notified of their right to file, within thirty days, any motion or response to the brief filed by their attorney. Appellants have failed to file any response. The State concurs that this appeal has no merit.
Appellants' attorney raises four issues that might be argued on appeal. First, it is contended that the owner's testimony should have been stricken since the owner testified the motorcycle disappeared from his yard on April 22nd or 23rd when the information alleged the crime was committed on or about the 18th of April, 1979. The circuit court denied the motion at trial by allowing the information to be amended to conform to the proof after finding that the defense had been furnished with a copy of the information, the defense was not claiming surprise, and the other records in the case supported the presumption of a clerical error. We find that no prejudice resulted to appellants.
Secondly, it is argued that the motion for the charge to be reduced to a misdemeanor should have been granted. The defense moved at trial that the court should take judicial notice that the value of a motorcycle would diminish from the $195.00 purchase price paid ten months earlier. There is no merit to the argument. While the owner stated he would expect the value to diminish with time, he testified that he had done some work on the bike, it was in "top condition," and he estimated the value to be 'about two hundred dollars.'
Next, the trial court properly found there was probable cause for the arrest of appellants. The officer had stopped appellants for improperly operating the motorcycle without wearing helmets. When neither could produce identification, he detained them to do a warrant check. As a result of the warrant check, the officer determined there were two felony warrants and one misdemeanor warrant outstanding on Torrence and one misdemeanor warrant outstanding on Shields. At that time appellants were arrested and given the Miranda warnings. At trial the voluntariness of the statements made after the arrest was challenged because of the lack of a written warning. The circuit court held a Denno hearing and found the statements to be voluntary. We find the circuit court's determination was not against the weight of the evidence.
Finally, the circuit court denied the defense motion that the charges be dismissed for lack of evidence that appellants had knowledge that the motorcycle was stolen. Ark.Stat.Ann. § 41-2206(3) (Repl. 1977) provides that "The unexplained possession or control by a person of recently stolen property . . . shall give rise to a presumption that he knows or believes that the property was stolen." The defense offered no testimony to rebut this presumption. Upon review of the briefs and transcripts before this Court, we find the appeal to be wholly frivolous and without merit. Accordingly, appellants' counsel's motion to be relieved is granted, and the judgments are affirmed.
Affirmed.