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Tomes v. State

ARKANSAS COURT OF APPEALS DIVISION III
Feb 20, 2019
2019 Ark. App. 103 (Ark. Ct. App. 2019)

Summary

In Tomes v. State, 2019 Ark. App. 103, 2019 WL 693717, we remanded to settle and supplement the record to include what appeared to be a missing document that was referenced on the docket sheet.

Summary of this case from Tomes v. State

Opinion

No. CR-18-562

02-20-2019

JONATHAN TOMES APPELLANT v. STATE OF ARKANSAS APPELLEE

Lisa-Marie Norris, for appellant. Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.


APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT
[NO. 17CR-13-15] HONORABLE GARY COTTRELL, JUDGE REMANDED TO SETTLE AND SUPPLEMENT THE RECORD; REBRIEFING ORDERED RITA W. GRUBER, Chief Judge

Appellant Jonathan Tomes appeals from an order of the Crawford County Circuit Court revoking his probation. On appeal, appellant argues that the evidence is insufficient to support the revocation because there was no evidence that appellant "absconded" or that doing so violated the terms and conditions of his probationary sentence. Because the record is incomplete and we do not have the documents we need to decide this appeal, we remand the case to the circuit court to settle and supplement the record.

The State filed an amended information on July 8, 2013, charging appellant with delivery of hydrocodone under Ark. Code Ann. § 5-64-426(c)(1) (Repl. 2016); appellant was also charged as a habitual offender under Ark. Code Ann. § 5-4-501 (Supp. 2017). On January 29, 2014, appellant entered a negotiated plea of guilty to delivery of hydrocodone and was sentenced to sixty months' probation, and the habitual-offender charge was dismissed. The sentencing order was entered February 21, 2014.

On March 27, 2018, the State filed a petition to revoke appellant's probation in part alleging that he "failed to comply with the rules and regulations of his probation by absconding; that said conduct is in violation of the terms and conditions of his probation." At the June 6, 2018 revocation hearing, the circuit court found that appellant had violated the terms and conditions of his probation. Specifically, the court found by a preponderance of the evidence that appellant "failed to report an address change and failed to abide by the terms and conditions of probation by failing to report to probation for a period of over a year with no ability of the probation department to contact him[.]" Appellant's probation was revoked, and he was sentenced to seven years' imprisonment in the Arkansas Department of Correction. This timely appeal followed.

Arkansas Supreme Court Rule 4-2(a)(8) requires the addendum to include any pleading or document in the record that is essential for this court to confirm our jurisdiction, to understand the case, and to decide the issues on appeal. The docket sheet contained in the record indicates that following the February 21, 2014 sentencing order, a "mod judgment/decree/order" was also filed on the same date. This order is not contained in the record. If anything material to either party is omitted from the record by error or accident, we may direct that the omission or misstatement 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)). We strongly urge appellant's counsel and the clerk of the circuit court to examine the record carefully to ensure that it contains all documents necessary for us to confirm our jurisdiction, understand the case, and decide the issues on appeal.

We note that the record was previously supplemented by stipulation of the parties to include a document originally omitted from the record. --------

We remand to the circuit court for the record to be settled and supplemented within thirty days. Upon supplementation and filing with our court, we order appellant to submit a substituted abstract, brief, and addendum within fifteen days after the supplemental record has been filed with this court. We encourage counsel to review Rule 4-2 of the Rules of the Arkansas Supreme Court and Court of Appeals to ensure that appellant's brief complies with the rules and that no additional deficiencies are present.

Remanded to settle and supplement the record; rebriefing ordered.

WHITEAKER and VAUGHT, JJ., agree.

Lisa-Marie Norris, for appellant.

Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.


Summaries of

Tomes v. State

ARKANSAS COURT OF APPEALS DIVISION III
Feb 20, 2019
2019 Ark. App. 103 (Ark. Ct. App. 2019)

In Tomes v. State, 2019 Ark. App. 103, 2019 WL 693717, we remanded to settle and supplement the record to include what appeared to be a missing document that was referenced on the docket sheet.

Summary of this case from Tomes v. State
Case details for

Tomes v. State

Case Details

Full title:JONATHAN TOMES APPELLANT v. STATE OF ARKANSAS APPELLEE

Court:ARKANSAS COURT OF APPEALS DIVISION III

Date published: Feb 20, 2019

Citations

2019 Ark. App. 103 (Ark. Ct. App. 2019)

Citing Cases

Tomes v. State

This is the second time this case has been before us. In Tomes v. State , 2019 Ark. App. 103, 2019 WL 693717,…