ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION IV

ROBERT A. PETERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-203

September 18, 2002

APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT

[NO. CR95-128]

HONORABLE HARVEY YATES,

CIRCUIT JUDGE

REBRIEFING ORDERED

Appellant Robert Peters was found guilty of attempted possession of a controlled substance with intent to deliver and was sentenced to both a sixty month suspended imposition of sentence and twenty-four months' probation based on certain terms and conditions, which was filed October 1, 1996. Following a revocation hearing on November 18, 1997, the court extended appellant's conditions of suspension by adding five additional years. On April 1, 1998, a judgment and disposition order was entered extending appellant's original suspended imposition of sentence to August 26, 2006, and ordering appellant to serve 120 days in the county jail for violating the terms of his suspension. On November 19, 1998, the trial court revoked appellant's suspended imposition of sentence after determining that appellant violated the terms and conditions by possessing a controlled substance with the intent to deliver and sentenced appellant to twenty years' imprisonment in the Arkansas Department of Correction.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. R. Sup. Ct. 4-3(j)(1), appellant's counsel filed a motion to withdraw as appellant's attorney, alleging that this appeal is without merit. Counsel presented a brief stating that there were no reversible errors committed in the proceedings. Commensurate with the instructions given by the clerk of this court, appellant filed a pro se statement of points for reversal.

An attorney's request to withdraw as counsel on the grounds that the appeal is completely without merit must be accompanied by a brief including an abstract. Ark. R. Sup. Ct. 4-3(j)(1) (2002); Adaway v. State, 62 Ark. App. 272, 972 S.W.2d 257 (1998). Counsel's brief must 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 with an explanation as to why each adverse ruling is not a meritorious ground for reversal, and the abstract must also contain each ruling. Ark. R. Sup. Ct. 4-3(j)(1); Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001).

Counsel failed to argue in his brief that the evidence was sufficient to support the revocation. Counsel for appellant incorrectly asserts that the issue was not preserved for appeal because his motion for directed verdict made at the conclusion of the State's case was not renewed at the end of the defense's case. Our supreme court amended Rule 33.1 of the Arkansas Rules of Criminal Procedure on April 9, 1999, to require a specific directed-verdict motion in bench trials to preserve sufficiency-of-the-evidence challenges for appellate review. Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000). Appellant entered a guilty plea and was sentenced in October 1996; therefore, a directed-verdict motion was notrequired to preserve this issue. Id. In Barbee v. State, 346 Ark. 185, 188, 56 S.W.3d 370, 372 (2001), our supreme court held that "Ark. R. Crim. P. 33.1 and the requirements thereof, pertaining to motions for dismissal and directed verdicts, do not apply to revocation hearings." Consequently, the court held that "appellant's motion for directed verdict made after sentencing was proper" and preserved his argument for appeal. Id. Thus, counsel in the present case was required to address in his brief the sufficiency of the evidence to support the revocation. We order rebriefing so that counsel may address this issue.

In addition to the denial of the directed-verdict motion and the three evidentiary objections addressed by appellant's counsel in counsel's brief, appellant was confronted with an additional adverse ruling concerning the introduction of certain testimony. The trial judge sustained the deputy prosecutor's objection to the relevancy of a question defense counsel asked Bobby Morphis, a witness for the State. This ruling was not included in counsel's brief or abstract, and on rebriefing, counsel should address this point as well.

Furthermore, we note that appellant's comments in paragraph three of his pro se brief state:

Although the State only responds to the point that the term imposed is greater than the period of the suspended sentence, appellant's pro se brief raises another colorable questionas to the jurisdiction of the court on a second revocation. We note that there is a jurisdictional issue with respect to the 1996 sentence regarding the propriety of sentencing appellant to both probation and suspended imposition of sentence and the effect of a prior revocation of his original sentence by a judgment entered on April 1, 1998. See Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (Ark. App. 1980) (court held that under the criminal code, a trial court is authorized to suspend imposition of sentence or place a defendant on probation but may not do both). Whether a court has jurisdiction to modify or amend an original sentence once a valid sentence is put into execution depends upon whether the case is controlled by Act 1569 of 1999, which became effective on April 15, 1999. Act 1569 empowered circuit courts to modify original sentences following revocation hearings. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). However, Bagwell also holds that Act 1569 is not retroactive, so if the act was not in effect at the time the crime was committed, then the trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is put into execution. In the case at bar, since the crime was committed in 1996, a question arises concerning whether the court lacked jurisdiction to modify the sentence. Bagwell, supra. Neither counsel for appellant nor the State discussed these jurisdictional issues, and they should be addressed on rebriefing. Because subject-matter jurisdiction is involved, the Arkansas Supreme Court has held that "the trial court's loss of jurisdiction over a defendant is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court." Moseley v. State, 349 Ark. 589, 597, 80 S.W.3d 325, ___(2002).

Further, the State responded to appellant's pro se points by noting that appellant failed to cite authority in support of this same claim. In Sweeney, this court held that we undertake a "thorough review of the full record regardless of whether or not the appellant identifies the trial court's errors." Sweeney, supra, at 9, 9 S.W.3d at 531. In Adaway, this court held that "Rule 4-3(j)(2) only requires an appellant to raise any points that he or she chooses," and thus, the pro se statement of points is supplemental to the brief filed by the representing attorney. Adaway at 273, 972 S.W.2d at 258. The Attorney General must brief the points raised by appellant. In a case where defense counsel has filed an inadequate Anders "no-merit" brief, an appellate court's only option is to direct counsel to rebrief the case. Bass v. State, 328 Ark. 331, 943 S.W.2d 580 (1997). Because of the deficiencies discussed above, counsel's brief is not in compliance with Rule 4-3(j) and amounts to no more than a statement that the appeal has no merit. Accordingly, counsel is directed to file a substituted brief and abstract.

Rebriefing ordered.

Stroud, C.J., and Robbins, J., agree.