NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CACR00-1472

JANUARY 16, 2002

FRANK BARNES AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT v. [CR1999-2018]

STATE OF ARKANSAS HONORABLE JOHN LANGSTON, APPELLEE CIRCUIT JUDGE

REMANDED TO SUPPLEMENT THE

TRANSCRIPT & TO FILE SUBSTITUTE BRIEF

The appellant, Frank Barnes, was convicted of first-degree murder, aggravated robbery, and theft of property. He was sentenced to forty years' imprisonment on the first-degree murder and aggravated-robbery convictions and ten years' imprisonment on the theft-of property conviction. The trial judge ran the sentences consecutively. Pursuant to Anders v. California, 386 U.S. 738 (1996), his attorney has filed a motion to withdraw on the grounds that the appeal is without merit. Appellant, pursuant to Arkansas Supreme Court Rule 4-3(j), has filed pro se points for reversal.

Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with an explanation of objections made byappellant and ruled on by the trial court, a record of motions and requests made by appellant and denied by the court, and a statement of reasons as to why counsel considers there to be nothing in the record that will support an appeal. Appellant's pro se points for reversal challenges the credibility of the witnesses who testified at his trial. The State maintains that appellant's challenges are without merit and that we must affirm his conviction.

In the notice of appeal, appellant's counsel designated "the entire record, including any audio and visual recordings, but excluding voir dire and opening and closing arguments, except for objections during same, as his record of appeal in this case." Rule 4-3(j)(1) of the Rules of the Supreme Court and Court of Appeals provides:

Any motion by counsel for a defendant in a criminal or a juvenile delinquency case for permission to withdraw made after notice of appeal has been given shall be addressed to the Court, and shall contain a statement of the reason for the request and shall be served upon the defendant personally by first-class mail. A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court.

In Anders, supra at 744, the United States Supreme Court held:

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court - not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if itfinds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

(Emphasis added.)

Counsel failed to include voir dire, opening statements, and the closing arguments from the guilt phase of appellant's trial. Pursuant to our decision in Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001), and without the complete record before us on appeal, we are unable to conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous" as required by Anders. Consequently, we return this case to appellant's counsel to supplement the transcript on appeal to include the portions of the transcript originally omitted, and if necessary, to file a substitute brief that addresses any objections contained in those parts of the transcript. We also instruct counsel to address the objections found in the transcript at pages 247, 285, and 286, which were not addressed in the original brief.

Remanded to supplement the transcript and to file a substitute brief.

Stroud, C.J., and Hart, J., agree.