ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION II

WILLIAM SHARP

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-219

January 14, 2004

APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT

[NOS. CR-97-124; CR-97-142]

HON. JOHN S. PATTERSON,

JUDGE

MOTION TO WITHDRAW AS COUNSEL DENIED; REBRIEFING ORDERED

John Mauzy Pittman, Judge

Appellant pled guilty in August 1998 to three counts of violation of the Arkansas Hot Check Law. He was fined $1,000 and placed on probation for a period of five years. One of the conditions of appellant's probation was that he not commit any offense punishable by imprisonment. On May 3, 2002, the State filed a petition to revoke appellant's probation alleging, inter alia, that he had committed an offense punishable by imprisonment by using a controlled substance. After a hearing, the trial court found that appellant violated the conditions of his probation, sentencing him to two concurrent twenty-four-month terms of imprisonment for violation of the Arkansas Hot Check Law, and to forty-eight months' suspended imposition of sentence as to an additional term of imprisonment. This appeal followed.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's attorney has filed a motion to withdraw as counsel on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract and brief referring to everything in the record that might arguably support the appeal, including all motions, objections, and requests decided adversely to appellant and a statement of reasons why none of those rulings would be a meritorious ground for reversal.

The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se brief within thirty days. Appellant did not file a brief. From our review of the record and the brief presented to us, we find compliance with Rule 4-3(j), but we cannot say that the appeal is wholly without merit. Accordingly, counsel's motion to be relieved is denied.

On our review of the record, we think that a non-frivolous issue exists regarding the trial court's authority to impose additional periods of suspended imposition of sentence on revocation for appellant's original crimes, the violations of the Arkansas Hot Check Law. In Gates v. State, 353 Ark. 333, 338-39, 107 S.W.3d 868, 870-71 (2003), the Arkansas Supreme Court held that where the original offense had been committed prior to the effective date of Act 1569 of 1999 (April 15, 1999), and where, following a guilty plea, Gates's original sentence to a fine and probation had been placed into execution by issuance of a judgment of conviction or a commitment order, the trial court lacked subject-matter jurisdiction to impose an additional suspended sentence upon revocation of probation.

In the present case, appellant's original offense was committed prior to April 15, 1999; appellant pled guilty and was placed on probation and fined, which fine was executed by the entry of a judgment and disposition order; and, upon revocation, the trial court imposed a sentence to a term of years plus an additional forty-eight months suspended imposition of sentence. Given these circumstances, we direct appellant's attorney to file a brief addressing the issues of (1) whether the trial court had authority to impose an additional suspended sentence upon revocation under Gates, supra, and (2) whether Ark. Code Ann. § 5-4-104(e)(3) (Repl. 1997), providing that the trial court may sentence the defendant to a term of imprisonment and suspend imposition of sentence to an additional term of imprisonment,1 was at issue in Gates or otherwise affected by the holding in that case.

Motion to Withdraw as Counsel Denied.

Rebriefing ordered.

Stroud, C.J., and Bird, J., agree.

1 Arkansas Code Annotated § 5-4-104 deals with authorized sentences generally; § 5-4-309(f) provides that a court revoking probation may impose any sentence that might have been imposed originally for the offense for which probation was imposed.