Whitson v. State

Cite as 2013 Ark. App. 730

ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-326

Opinion Delivered December 11, 2013

PENNY J. WHITSON APPEAL FROM THE BAXTER
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2009-130]
V.
HONORABLE GORDON WEBB,
JUDGE
STATE OF ARKANSAS
APPELLEE REMANDED TO SETTLE AND
SUPPLEMENT THE RECORD;
REBRIEFING ORDERED

ROBIN F. WYNNE, Judge

Penny Whitson appeals from the revocation of her probation. After a hearing on

November 16, 2012, the circuit court revoked Whitson’s probation and sentenced her to a

total of 122 months’ imprisonment. She argues on appeal that (1) the trial court erred by

sentencing her to probation and drug court in November 2009 because she was ineligible for

both; (2) because the November 2009 sentence was illegal, the sentence imposed upon

revocation was also illegal; and (3) the trial court erred by “sentencing her to more time than

her original sentence.” We cannot reach the merits at this time because we must remand for

the circuit court to settle and supplement the record; rebriefing is then necessary.

Apparently, on November 13, 2009, Whitson pled guilty to possession of a controlled

substance and possession of drug paraphernalia and was sentenced to 144 months’ supervised
Cite as 2013 Ark. App. 730

probation. The order sentencing her to probation, however, is not included in the

addendum or in record, nor is the charging instrument or the terms and conditions of

Whitson’s probation. Without this original order and the relevant pleadings, we cannot

consider the legality of the sentence imposed upon revocation. In addition, there is some

indication that a sentencing order may have been entered before the order revoking

appellant’s probation was filed on January 3, 2013, with the handwritten notation “amended

revocation.” That order, if it exists, as well as any other relevant pleadings, orders, or other

documents, should also be included in the supplemental record and addendum.

This court has stated that if anything material to either party is omitted from the

record by error or accident, we may direct that the omission be corrected and that a

supplemental record be certified and transmitted. Miller v. State, 2011 Ark. App. 95, at 3;

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

4(a)). Accordingly, we remand this case to the circuit court to settle and supplement the

record. Appellant has thirty days from the date of this opinion to file a supplemental record

with this court. Appellant’s substituted brief is due fifteen days after the supplemental record

is filed. Ark. Sup. Ct. R. 4-2(b)(3) (2012). The examples we have noted are not to be taken

as an exhaustive list of deficiencies; counsel should carefully review the rules and ensure that

no other deficiencies exist.

Remanded to settle and supplement the record; rebriefing ordered.

PITTMAN and HARRISON, JJ., agree.

Law Office of Chris Lacy, by: Chris Lacy, for appellant.

Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.

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