ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION I

RICHARD KEITH HOLLOWAY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-620

February 27, 2002

AN APPEAL FROM CRAWFORD COUNTY CIRCUIT COURT

CR2000-378

HONORABLE FLOYD ROGERS

REBRIEFING ORDERED

This is a probation-revocation case. Richard Keith Holloway pled guilty to possession of marijuana on January 10, 2001, and was sentenced to five years' suspended imposition of sentence, twelve months' court-supervised probation, drug counseling, suspended driver's license for six months, thirty days of community service, and was assessed court costs. On January 30, 2001, Holloway was arrested and given citations for fleeing in a vehicle, resisting arrest, driving while license suspended, and no proof of liability insurance. On March 12, 2001, the court found Holloway guilty of violating his probation and revoked his suspended imposition of sentence, sentencing him to five years in the Arkansas Department of Correction. Holloway's counsel has filed a motion to withdraw as counsel pursuant to Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, claiming that there would be no merit to an appeal. However, we must order rebriefing due to counsel's failure to address the issue of the sufficiency of the evidence to support the revocation.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of theArkansas Supreme Court and Court of Appeals, Holloway's counsel has filed a motion to withdraw on the grounds that there is no merit to an appeal since there were no adverse rulings and no motion for directed verdict or dismissal was made at the close of the evidence in the probation revocation proceeding. This motion was accompanied by a brief with an adequate abstract that demonstrated that Holloway's trial counsel made no objections and made a motion for directed verdict only at the close of the State's case-in-chief.

Holloway's counsel contends that because trial counsel failed to move for dismissal at the close of all the evidence as required by Rule 33.1 of the Arkansas Rules of Criminal Procedure, Holloway has waived his right to appeal the sufficiency of the evidence, citing Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000). In addition, Holloway's counsel notes that trial counsel did not renew his motion for directed verdict, and even if he had, the directed verdict motion failed to address the charges of driving on a suspended license and failure to have liability insurance. As such, Holloway's counsel contends that there would be no merit to an appeal.

In Miner v. State, supra, the supreme court held that Arkansas Rule of Criminal Procedure 33.1, as amended, required a defendant in a revocation hearing to move for dismissal, stating the specific grounds thereof, in order to preserve the issue of sufficiency of the evidence. However, the supreme court in Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), held that the decision in Miner, supra, was incorrect and that the requirements of Rule 33.1, pertaining to motions for dismissal and directed verdict, do not apply to revocation hearings. Consequently, the supreme court held that the probationer's motion for directed verdict made after sentencing was sufficient to preserve his sufficiency argument for appeal. Barbee, supra.

Holloway's counsel filed his motion to withdraw as counsel and brief in support on August 17, 2001, prior to the decision in Barbee, supra, on October 11, 2001. However, Holloway filed prose points for reversal on September 10, 2001, and the State filed an appellee brief on October 10, 2001. Holloway's counsel thus could have addressed the sufficiency issue in a reply brief which would have been due after the Barbee decision was issued. Moreover, it would be inappropriate for this court to undertake the role of advocate and conduct review of this issue in the absence of either a merit or Anders brief from counsel. Consequently, due to the failure to address the sufficiency-of-the-evidence issue, we direct counsel to rebrief this appeal within thirty days in accordance with Rule 4-3(j). The State will be allowed thirty days from service of the brief in which to file a responsive brief. The motion to withdraw is denied.

Rebriefing ordered.

Crabtree and Robbins, JJ., agree.