ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

FABIOUS MYLES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-774

June 25, 2003

APPEAL FROM THE MISSISSIPPI

COUNTY CIRCUIT COURT,

[CR-2000-58, CR-99-69]

HONORABLE DAVID BURNETT,

CIRCUIT JUDGE

REBRIEFING ORDERED

Appellant, Fabious Myles, pleaded guilty to the offense of possession of a controlled substance, cocaine, on April 12, 1999 (case number 99-69). On that same date, a judgment and commitment order was entered placing Myles on three years' probation. On May 12, 2000, Myles entered a guilty plea to the offense of burglary, for which he was sentenced to forty-two months in the Department of Correction and a suspended imposition of sentence of sixty months (case number 2000-58). Both orders contained provisions that required Myles to live a law-abiding life.

On April 15, 2002, two separate petitions for revocation were filed, one pertaining to the 99-69 conviction and one pertaining to the 2000-58 conviction. Both revocation petitions alleged that on January 10, 2002, Myles violated the terms of his probation and

suspended sentence by "unlawfully and feloniously employing physical force upon Daniel George with the purpose of committing a theft, and by fleeing on foot after the incident." A hearing was held on April 16, 2002, on both revocation petitions. After taking testimony, the circuit judge revoked both Myles's probation and suspended sentence. A judgment and commitment order was entered on that same day in 99-69, revoking Myles's probation and sentencing him to ten years in the Arkansas Department of Correction. Likewise, a judgment and commitment order was also entered that day in 2000-58, revoking Myles's suspended sentence and sentencing him to ten years in the Arkansas Department of Correction. The circuit judge ordered that the sentences run concurrently.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, Myles's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by a brief purportedly referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to Myles made by the trial court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The clerk of this court furnished Myles with a copy of his counsel's brief and notified him of his right to file pro se points; he has filed such points. The State has filed a brief in response to Myles's pro se points.

For the reason stated below, we remand this case for rebriefing. Therefore, we need not address the adverse rulings discussed by counsel in his brief or the pro se points advanced by Myles at this time.

Our concern involves the revocation of Myles's probation in 99-69. In that case, Myles was sentenced to three years' probation on April 12, 1999. The three years of probation would have expired on April 12, 2002. The petition for revocation in this case was not filed until April 15, 2002, a Tuesday, three days after Myles's probation ended.

The issue of whether a circuit court can revoke probation after expiration of the probationary period is a jurisdictional question. Harris v. State, 80 Ark. App. 181, 92 S.W.3d 690 (2002). A trial court may revoke a suspension or probation subsequent to the expiration of the period only if the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for such violation before expiration of the period of suspension or probation. Id.; see Ark. Code Ann. § 5-4-309(e) (Supp. 2001).

In this case, the record does not indicate that Myles was arrested for a violation of his probation in 99-69 prior to the expiration of his probation, nor does it reveal that a warrant was issued for his arrest for violation of his probation in this case prior to the expiration of the probation period. Although the judgment and commitment order provides that Myles is to be given jail-time credit of ninety-two days, this does not provide proof that Myles was arrested, or a warrant was issued for his arrest, in 99-69 on a violation of probation prior to the expiration of the probationary period. Myles's counsel fails to address the issue of why the circuit judge had jurisdiction to hear the petition for revocation in 99-69, more than three years after the imposition of probation, even though the fact that the judge heard the matter and revoked Myles's probation is certainly adverse to Myles.

From a review of the record and the brief presented to this court, appellant's counsel has failed to comply with the requirements of Rule 4-3(j) of the Arkansas Rules of the Supreme Court and the Court of Appeals because he failed to address the issue of whether the trial court had jurisdiction to revoke Myles's probation in the 99-69 case. Counsel's motion to be relieved is therefore denied, and the case is remanded for rebriefing in light of the jurisdictional issue. On rebriefing, counsel may elect to either submit a brief in adversary form to which the State can respond or one in compliance with Rule 4-3(j) as to all adverse rulings contained in the record.

Rebriefing ordered.

Neal and Crabtree, JJ., agree.