ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

RAYMOND LESHAY MITCHELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-600

JULY 3, 2002

APPEAL FROM THE MISSISSIPPI

COUNTY CIRCUIT COURT,

CHICKASAWBA DISTRICT,

[NO. CR-96-258, CR-97-217]

HONORABLE VICTOR LAMONT HILL,

JUDGE

AFFIRMED IN PART; REBRIEFING

ORDERED IN PART

Appellant Raymond Leshay Mitchell appeals the revocation of his probation and revocation of his suspended imposition of sentence as entered by the Mississippi County Circuit Court with regard to two crimes. The judgment and disposition orders were filed on March 1, 2001, and a timely notice of appeal regarding both was filed on March 14, 2001. Appellant's attorney has filed a motion to be relieved pursuant to Arkansas Supreme Court Rule 4-3(j) and Anders v. California, 386 U.S. 738 (1967), and a brief in support of that motion. Appellant was furnished a copy of his counsel's brief and was informed of his right to file pro se points for reversal within thirty days; he did not do so. The State has declined to file a brief. After a review of the record in this appeal, we hold that counsel fully complied with Rule 4-3(j) and Anders, supra, with regard to revocation of appellant's

probationary sentence. We affirm that revocation and relieve counsel. However, withregard to the suspended imposition of sentence, we hold that counsel did not fully comply and that this appeal should be remanded for rebriefing. The choice of whether it be no-merit or a meritorious brief is left to counsel's studied professional judgment.

As the dispositions differ, we discuss them separately. We first consider the revocation of appellant's probation. Appellant pleaded guilty to delivery of cocaine, a Class Y felony, and for this he was given five years of probation in a judgment and disposition order dated March 4, 1997. Appellant agreed to certain conditions, including that he live a law-abiding life, not violate any state, federal, or municipal law, and that he not possess or use any alcoholic beverage or associate with those who do.

The State alleged that on March 10, 2000, appellant committed the offenses of theft of property, specifically a motor vehicle, second offense driving while intoxicated, driving on a suspended or revoked license, and failure to stop after an accident. Based upon this information, the State filed a petition to revoke appellant's probation.

At the hearing on the petition, the testimony from four witnesses demonstrated that appellant drove away from a convenience store in an automobile that he did not own or have permission to use. A friend, Taurus Harris, drove appellant to a social club in this automobile, a 1992 Grand Prix, which was owned by Harris's mother, Lucille Harris. After appellant drove off at approximately midnight, he drove the car into an oncoming vehicle occupied by Tom Johnson, knocking Mr. Johnson's vehicle into a ditch and damaging both cars. Appellant drove on some distance before wrecking the Grand Prix in another ditch. Police were summoned, and they found appellant, the only occupant, sitting in the driver'sseat. Appellant smelled strongly of intoxicants, he could barely stand, and he refused to take a breathalyzer examination.

Appellant's counsel moved for a directed verdict, which was denied. Appellant then took the stand and testified that he knew that being at the night club was a violation of his probation; that he thought he had permission to take the car; that he had been drinking "a little bit," perhaps three or four beers; and that he knew he had hit the other car but that it was due to a tire blowout. Appellant asked the trial judge for mercy.

The trial judge found that appellant had violated the terms of his probation. Appellant was sentenced to three years of imprisonment and three years of suspended imposition of sentence, well within the possible range of sentencing of ten to forty years or life. There were no other rulings adverse to appellant.

In a revocation case, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). The trial court's findings will be upheld on appeal unless they are clearly against the preponderance of the evidence. Id. Appellant admitted that he was drinking on the night in question, a clear violation of a condition of behavior for his probation. There were other violations that were proven by a preponderance, but only one was necessary to revoke. There could be no meritorious appeal founded on the sufficiency of the evidence to revoke his probation.

We turn now to the other revocation. On September 15, 1997, appellant was charged with being a felon in possession of a firearm, a Class D felony, along with two other criminalcounts that were later dismissed. Appellant entered a guilty plea, and on March 25, 1998, a judgment and commitment order was filed accepting that plea and sentencing appellant to three years in prison to be followed by three years of suspended imposition of sentence conditioned on the same above-noted behavioral requirements. The conditions of suspension stated that if appellant violated the terms and conditions, appellant could be sentenced from zero to three years imprisonment and up to a $10,000 fine. Appellant served time in prison and was on parole when he was accused of the crimes on which this revocation is based. A revocation petition was filed and was considered simultaneously with the other revocation petition. The trial judge found that appellant had also violated the terms of his suspended imposition of sentence. Appellant was sentenced to three years in prison to be followed by three years of suspended imposition of sentence.

While we agree with counsel that there is no meritorious argument to be made with regard to the sufficiency of the evidence to revoke appellant's suspended imposition of sentence, we cannot ignore that there appears an argument to be made with regard to the legality of appellant's sentence. For this Class D felony, felon in possession of a firearm, appellant was subject to a possible sentence of up to six years. See Ark. Code Ann. § 5-4-401(a)(5) (Supp. 1999). When appellant was first sentenced, he received a three year prison term and three years of suspended imposition of sentence. When his suspension was revoked, he was subject to a possible prison sentence not exceeding three years, as his conditions indicated. Any sentence to imprisonment, when combined with any previous imprisonment imposed for the same offense, shall not exceed the limitations provided by§ 5-4-401. Ark. Code Ann. § 5-4-309(f) (Supp. 2001). The legality of this sentence is in question. We do not by pointing out this issue resolve its merits. However, in keeping with our obligations under the Arkansas Rules of the Supreme Court and Anders, supra, we cannot hold that an appeal of this revocation is wholly without merit.

We affirm the revocation of probation, affirm the sentence entered thereafter, and relieve counsel. We remand the revocation of appellant's suspended sentence for counsel to determine whether to file a compliant no-merit brief or a meritorious brief.

Pittman and Baker, JJ., agree.