ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

THOMAS N. CROWDER, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-795

July 3, 2002

APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT

CR 94-129, CR 95-10

HON. JOHN S. PATTERSON, JUDGE

REBRIEFING ORDERED

Thomas Crowder was convicted of first-degree assault and theft of property in 1995 and sentenced to twelve months' probation for the assault conviction and eighty-four months' probation for the theft-of-property conviction. The State filed a petition for revocation in September 2000, alleging that appellant violated the conditions of his probation by committing an offense punishable by imprisonment, by failing to pay restitution and probation fees, and by failing to report to the probation officer. The court found by a preponderance of the evidence that appellant did not comply with terms of his probation by failing to pay restitution, fines, court costs, and probation fees without excuse, failing to report to his probation officer, and committing an offense punishable by imprisonment. Based on these findings the court revoked his probation for the first-degree assault conviction and the theft-of-property conviction, and sentenced him to twelve months in the Department of Correction with judicial transfer to the Department of Community Punishment for the assault conviction and twenty-four months in the Department of Correction with judicial transfer to the Department of Community Punishment for the theft conviction and suspended imposition of sentence for an additional eighty-four months.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j), appellant's counsel has filed a motion to withdraw on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract of the proceedings below, including all objections and motions decided adversely to appellant, and by a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of this court provided appellant with a copy of his counsel's brief and notified him of his right to file a pro se statement of points for reversal. Appellant did not file a pro se brief.

Anders, supra, requires this court to conduct a full examination of the proceedings to decide if the case is "wholly frivolous" after appellant's counsel submits a no-merit brief. Anders, 386 U.S. at 744. We undertake this thorough review of the full record regardless of whether or not appellant identifies the trial court's errors. While we agree that there is no meritorious argument to be made with regard to the sufficiency of the evidence to revoke appellant's probation or the denial of his motion for continuance, our review revealed that there may be an argument with regard to whether his sentences were legal. Although the issue was not raised below, the issue of an illegal sentence may be raised for the first time on appeal. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995). The possible sentencing issues involve the following: 1) whether the trial court revoked a probationary sentence entered on the misdemeanor assault conviction that had expired at the time of the revocation; 2) the discrepancy in the record regarding whether appellant's theft-of-property conviction was a Class B or a Class C felony; 3) the validity and effect of the trial court's 1997 order finding appellant in violation of the conditions of his probation and sentencing him to jail time as an additional condition. We deny appellant's counsel's motion to withdraw and remand for rebriefing for counsel to determine whether to file a compliant no-merit brief or a meritorious brief.

Rebriefing ordered.

Hart and Roaf, JJ., agree.