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Simmons v. State11/5/2003
re, the witness testified, on appellant's behalf, that he had witnessed the shooting. The witness explained that he did not talk to the police following the shooting and that, while his brother was incarcerated, he learned that appellant was being charged with the shooting. The witness stated that he then asked his brother to pass his information along to appellant in case appellant needed him to testify on his behalf. This evidence did not prejudice appellant before the jury; therefore, the denial of his motion for mistrial was proper.
Finally, it appears that counsel is requesting to withdraw from any further proceedings in case number CR-98-460. In the notice of appeal filed on August 5, 2002, the heading refers to case number CR-98-460 and case number CR-01-406. Following the amendment of the judgment to clarify appellant's sentence, a subsequent notice of appeal was filed on March 18, 2003, in which the heading only refers to case number CR-98-460. In his points on appeal, appellant indicates that there are no points on appeal in CR-98-460. However, in the argument section of the brief, counsel discussed all adverse rulings that occurred in CR-98-460 and concluded with the following statement:
Appellant requests . . . that his revocation in CR-98-460 and twenty year sentence of which ten years runs consecutively to the murder in the second degree be ruled upon as this Court sees fit. Counsel for Appellant does not request to be relieved from representation on CR-98-460, the revocation but does request that a copy of this brief be served on Appellant with thirty days to submit his own brief on the revocation.
Counsel is unclear as to whether he wishes to withdraw in case number CR-98-460. Anders v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court Rule 4-3(j)(1) delineate the proper procedure for the withdrawal of counsel for a defendant in a criminal case. See Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001). If counsel intended to withdraw, he should have filed a brief and motion to withdraw pursuant to Anders v. California, supra, and Rule 4-3(j)(1). See Buckley v. State, 345 Ark. 570, 48 S.W.3d 534 (2001). Because counsel's intentions are unclear, we direct counsel to either file a motion to withdraw with an accompanying brief, pursuant to Rule 4-3(j)(1), or rebrief the issue regarding the revocation of appellant's probated sentence and argue the merits.
Affirmed in part; rebriefing ordered.
Stroud, C.J., and Roaf, J., agree.
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