Hart v. State

Cite as 2017 Ark. App. 130

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-856

OLIVER W. HART III Opinion Delivered: March 8, 2017
APPELLANT
APPEAL FROM THE MILLER
V. COUNTY CIRCUIT COURT
[NOS. 46CR-02-570; 46CR-02-162;
46CR-03-627]
STATE OF ARKANSAS
APPELLEE HONORABLE KIRK JOHNSON,
JUDGE

REMANDED FOR CORRECTION
AND SUPPLEMENTATION OF
RECORD; REBRIEFING ORDERED

RITA W. GRUBER, Chief Judge

Appellant Oliver Hart pleaded guilty on April 7, 2009, in three separate cases, all of

which involved manufacturing, delivering, or possessing a controlled substance and

possession of drug paraphernalia. He was placed on probation for a period of ten years in

each case and ordered to make payments to Miller County for fines, costs, and fees. In

September and October 2014, the State filed petitions for revocation in Miller County on

all three cases, alleging that appellant had committed another drug offense and had failed to

pay his fines, fees, and costs. The State filed an amended petition in all three cases on April

7, 2016, realleging the original allegations and adding that appellant had failed to abstain from

the use of alcoholic beverages or had manufactured, possessed, used, sold, or distributed a

controlled substance or paraphernalia. On July 19, 2016, the circuit court entered orders
 Cite as 2017 Ark. App. 130

revoking appellant’s probation in all three cases, finding that he had violated all three

conditions alleged.

Appellant brings two points on appeal. First, he contends that the circuit court erred

in denying his motion to dismiss the revocation petition for failure to provide him a

preliminary hearing. Second, he argues that the evidence was insufficient to revoke on any

of the three alleged violations. We remand to the circuit court to settle and supplement the

record, and we order rebriefing after the record has been settled.

Arkansas Supreme Court Rule 4-2(a)(8) requires that the addendum to appellant’s brief

include all documents that are essential for the appellate court to understand the case and to

decide the issues on appeal. Appellant’s addendum does not contain his written conditions of

probation, which is essential to our review of this case and his argument that the trial court

erred in finding that his conditions were violated. See Reyes v. State, 2012 Ark. App. 125.

Moreover, appellant’s written conditions of probation are not contained in our record. If

anything material to either party is omitted from the record by error or accident, we may

direct that the omission be corrected and, if necessary, that a supplemental record be certified

and transmitted. Ark. R. App. P.–Civ. 6(e) (made applicable to criminal cases by Ark. R.

App. P.–Crim. 4(a)); Baney v. State, 2016 Ark. App. 405.

In addition, the three sentencing orders all incorrectly indicate that appellant

voluntarily, intelligently, and knowingly entered a negotiated plea of guilty, rather than

stating that appellant was found guilty by the court and sentenced by the court.

Accordingly, we remand to the circuit court to settle and supplement the record within

2
 Cite as 2017 Ark. App. 130

thirty days. We also direct the circuit court to correct the sentencing orders in all three cases.

Upon correction and supplementation of the record, appellant shall have fifteen days in which

to file a substituted abstract, addendum, and brief. See Ark. Sup. Ct. R. 4-2(b)(3). The State

may revise or supplement its brief within fifteen days of the filing of appellant’s brief or may

rely on its previously filed brief.

Remanded for correction and supplementation of record; rebriefing ordered.

KLAPPENBACH and GLOVER, JJ., agree.

Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

Leslie Rutledge, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.

3