NOT DESIGNATED FOR PUBLICATION

Arkansas Court of Appeals

Judge Josephine Linker Hart

Division I

CHARLES CANNON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1192

January 9, 2002

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

[NO. CR98-174]

HONORABLE RALPH WILSON, JR.,

CIRCUIT JUDGE

REBRIEFING ORDERED

On January 25, 1999, appellant, Charles Cannon, pleaded guilty to the crime of impairing the operation of a vital public facility and was placed on probation for five years. One condition of probation was that he would not violate any state laws. On September 28, 1999, the State filed a petition to revoke appellant's probation, alleging that he had violated this condition by committing a second-degree battery upon a law enforcement officer. A trial was held in April 2000 on the second-degree battery charge, and by agreement of the parties, the court simultaneously heard and considered the petition to revoke appellant's probation.

The jury found appellant guilty of second-degree battery, and following the recommendation of the jury, the court sentenced him to three years' imprisonment. Thecourt then revoked appellant's probation and sentenced him to six years' imprisonment. According to the judgment and commitment order with docket number CR 98-174, the number associated with the probation revocation, the sentence was to "run[ ] consecutively

with CR 99-166," the docket number associated with appellant's battery conviction. Appellant then appealed, filing a notice of appeal that refers only to the docket number associated with the probation revocation, CR 98-174.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1) (2001), appellant's counsel seeks to withdraw as appellant's attorney, alleging that this appeal is without merit. Counsel purports to have presented a brief listing all rulings adverse to appellant and explaining why each adverse ruling does not present a meritorious ground for reversal. Counsel also claims to have prepared an abstract containing all rulings adverse to appellant along with other material parts of the record. The clerk of this court furnished appellant with a copy of counsel's brief and notified him of his right to file a pro se statement of points for reversal within thirty days. Appellant did not file any such statement.

We must remand for rebriefing. We note that the documents found in the record on appeal pertain only to the probation revocation, as the record does not contain the felony information, judgment and commitment order, or notice of appeal relating to the battery charge. Nevertheless, counsel argues in his brief that the trial court properly denied his motion for a directed verdict on the battery charge and does not address whether the evidence was sufficient to support the probation revocation. Thus, it is unclear to this court whether this is an appeal from the battery conviction or the probation revocation or both. And if this is an appeal from only one matter, there is no report about the status of an appeal on the other. Given this confusion, we must remand for rebriefing so that counsel may clarify his position and prepare a brief and abstract accordingly.

Further, we remind counsel that when appealing a conviction following a jury trial, counsel must not omit from the record on appeal any portion of the trial and must include a transcript of voir dire and opening and closing arguments. See Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915, reh'g denied, 75 Ark. App. 280-A, 53 S.W.3d 48 (2001); McCoy v. State, 74 Ark. App. 414, 49 S.W.3d 154, supp. opinion on grant of reh'g, 75 Ark. App. 423-A, 52 S.W.3d 510 (2001). From our review of the record, it is apparent that certain portions of the proceedings below were omitted. If this is an appeal from the battery conviction, counsel should supplement the record on appeal to include the portions of the record originally omitted and address any adverse rulings found in the omitted portions.

Rebriefing ordered.

Stroud, C.J., and Neal, J., agree.