DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

CACR 01-862

July 3, 2002

ERIC ESQUIBEL APPEAL FROM GARLAND COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE TOM SMITHERMAN,

CIRCUIT JUDGE

STATE OF ARKANSAS

In November 2000 the appellant, Eric Esquibel, entered a negotiated plea of guilty to the offense of producing an obscene film, and he was placed on probation for a period of thirty months. In January 2001 the State filed a petition to revoke alleging that appellant had violated the laws and ordinances condition of his probation by committing the offense of criminal mischief. After a hearing, the trial court found that appellant had inexcusably violated this condition of his probation. The court allowed appellant to remain on probation but ordered him to serve sixty days in jail as an additional condition.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that the appeal is without merit. Counsel's motion was accompanied by a brief purporting to include a list of all rulings adverse to the appellant made by the trial court on all objections, motions, and requests made by either party, along with an explana tion as to why each ruling is not a meritorious basis for reversal. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se statement of points within thirty days. Appellant has filed a statement of points. The State has filed a brief in response to the issues raised by appellant in his statement of points. For the reasons discussed below, we remand for rebriefing and for the record to be supplemented.

In this case, the State alleged that appellant had violated his probation by committing the crime of criminal mischief. The circumstances surrounding this allegation involved damage that was done to a vehicle that was sitting in a parking lot at a bowling alley. The owner of the vehicle was the victim of the crime for which appellant was placed on probation.

Under Ark. R. Sup. Ct. 4-3(j), an attorney who requests to withdraw from appellate representation on the ground that theappeal is wholly without merit must file a brief that contains an argument section that includes a list of all adverse rulings with an explanation as to why each adverse ruling is not a meritorious ground for reversal. In addition, we have held that the record on appeal must consist of the entire, complete record so that we can conduct a full examination of all of the proceedings in order to decide whether the appeal is wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001).

The trial court's decision finding that appellant violated a condition of his probation is an adverse ruling. In a revocation case, it is not necessary for an appellant to have moved for dismissal on the ground that the evidence is insufficient in order to preserve that issue for appeal. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). In this instance, appellant did move for dismissal on this ground; however, counsel has failed to either list or discuss this issue in his brief. Counsel must address this issue in order to comply with Rule 4-3(j). Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000). Therefore, we remand for rebriefing because of this omission. By this opinion, we do not foreclose a decision by counsel to address this issue in a merit brief. In Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001), we explained that the test for determining when an Anders brief may be filed is not whether counsel thinks that the trial courtcommitted no reversible error but rather whether the points on appeal would be wholly frivolous. On rebriefing, counsel may elect to either submit a brief in adversary form or one in compliance with Rule 4-3(j).

Also, during the course of the hearing, the State introduced into evidence a video tape produced by a surveillance camera positioned in the parking lot of the bowling alley. The State's witnesses described what they believed to have been portrayed on the tape, and the trial court viewed the tape. However, the tape has not been included in the record on appeal. Therefore, we remand for the record to be supplemented to include this exhibit. See Campbell v. State, supra.

Remanded for Rebriefing and for the Record to be Supplemented.

Neal and Griffen, JJ., agree.