Fiveash v. State (2)
2014 Ark. App. 129
Ark. Ct. App.2014Background
- Fiveash appeals Boone County Circuit Court convictions for driving on a suspended license, careless or prohibited driving, failure to wear a seat belt, no license tags, no proof of liability insurance, and obstruction of government operation.
- Counsel filed a no-merit brief and moved to withdraw under Rule 4-3(k), contending the appeal is wholly without merit.
- The court found a hearsay objection to Trooper Billy Martin's testimony had been raised but not abstracted or addressed in the brief.
- The State argued the testimony was not hearsay because it was not offered for the truth of the matter asserted, and the trial court overruled the objection.
- The court ordered rebriefing and substituted brief, abstract, and addendum due to counsel’s failure to address all adverse rulings; motion to withdraw denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was counsel's Rule 4-3(k) brief properly abstracted and addressed? | Fiveash | Fiveash | No; deficient, required rebriefing. |
| Was the hearsay objection to Trooper Martin's testimony properly preserved and considered? | Fiveash | Fiveash | Objection existed but not fully abstracted; remand for rebriefing. |
| Is rebriefing the proper remedy for Rule 4-3(k) deficiencies? | Fiveash | Fiveash | Yes; rebriefing ordered. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (no-merit briefs require procedural safeguards)
- Sartin v. State, 2010 Ark. 16 (Ark. 2010) (no-merit brief must address adverse rulings)
- Wells v. State, 2012 Ark. App. 151 (Ark. App. 2012) (guidance on Rule 4-3 procedures)