ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION III

CHARLES CANNON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1192

November 20, 2002

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

[NO. CR98-174]

HONORABLE RALPH WILSON, JR.,

CIRCUIT JUDGE

AFFIRMED

On January 25, 1999, appellant, Charles Cannon, pleaded guilty to the crime of impairing the operation of a vital public facility and was placed on probation for five years. One condition of probation was that he not violate any state laws. On September 28, 1999, the State filed a petition to revoke appellant's probation, alleging that he had violated this condition by committing a second-degree battery upon a law enforcement officer. A trial was held in April 2000 on the second-degree battery charge, and by agreement of the parties, the court simultaneously heard and considered the petition to revoke appellant's probation.

The jury found appellant guilty of second-degree battery, and following the recommendation of the jury, the court sentenced him to three years' imprisonment. The court then revoked appellant's probation and sentenced him to six years' imprisonment to run consecutively with the battery sentence. Appellant then appealed, filing a notice of appeal that refers only to the docket number associated with the probation revocation, CR98-174.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j) (2002), appellant's counsel seeks to withdraw as appellant's attorney, alleging that this appeal is without merit. Counsel purports to have presented a brief listing all rulings adverse to appellant and explaining why each adverse ruling does not present a meritorious ground for reversal. Counsel also claims to have prepared an abstract containing all rulings adverse to appellant along with other material parts of the record. The clerk of this court furnished appellant with a copy of counsel's brief and notified him of his right to file a pro se statement of points for reversal within thirty days. Appellant did not file any such statement.

On two previous occasions, we ordered counsel to rebrief, on the first occasion asking counsel to address certain unbriefed issues and on the second asking counsel to clarify his arguments regarding whether appellant was appealing from the probation revocation, the conviction, or both. After the second order, counsel supplemented the record. Counsel now states that while a notice of appeal from the revocation case was filed, no notice of appeal from the battery conviction was ever filed. He nevertheless suggests that we address the sufficiency of the evidence to support the battery conviction. The timely filing of a notice of appeal, however, is a jurisdictional requirement, and absent an effective notice of appeal, this court lacks jurisdiction to consider an appeal. Cannon v. State, 58 Ark. App. 182, 185, 947 S.W.2d 409, 410 (1997). Further, appellant, through his counsel, failed to file a motion for belated appeal with the Arkansas Supreme Court either before the initial appeal was filed or when we ordered rebriefing on the two previous occasions. See Ark. R. App. P.--Crim.2(e) (2002). Thus, we are precluded from considering the sufficiency of the evidence to support the battery conviction.

In contravention of our rules, counsel fails to address whether the court's decision to revoke appellant's probation was clearly against the preponderance of the evidence, which is our standard of review in reviewing a probation revocation. And even though there is not a notice of appeal, counsel instead argues in his brief that the trial court properly denied the motion for a directed verdict on the battery charge, which requires our determining whether there was substantial evidence to support the conviction. See generally Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000) (describing the two standards of review). Because the burdens are different, however, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Bradley v. State, 347 Ark. 518, 521, 65 S.W.3d 874, 876 (2002). It is apparent from the record that the basis for the probation revocation was appellant's commission of the battery. Because of the differing burdens, counsel's explanation of why there was substantial evidence to support the battery conviction will suffice to support our conclusion that the probation revocation was not a ruling presenting a meritorious ground for reversal. Further, we conclude that the other adverse rulings do not provide a meritorious ground for reversal of the probation revocation.

Thus, after reviewing the record and counsel's brief and abstract, we agree that a meritorious claim does not exist to provide a ground for reversal on the rulings adverse to appellant. Therefore, the request of counsel for appellant to be relieved as counsel is granted, and appellant's probation revocation is affirmed.

Affirmed.

Stroud, C.J., and Roaf, J., agree.