NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION III

CACR 01-1327

November 20, 2002

LEE CHARLES LEWIS APPEAL FROM BRADLEY COUNTY

APPELLANT CIRCUIT COURT

[CR 2000-84-2B]

v.

HONORABLE SAMUEL B. POPE,

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE

REBRIEFING ORDERED

Lee Charles Lewis was convicted by jury of two counts of possession of a controlled substance with intent to deliver. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Lewis's counsel filed a motion to withdraw as his attorney, alleging that an appeal from the convictions would be without merit. Counsel also filed a brief in which he contends that all adverse rulings were abstracted and discussed. The clerk of this court furnished Lewis 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. Lewis filed a statement listing two points for reversal, insufficiency of the evidence and improper removal of blacks from the jury. Because Lewis's counsel has failed to abstract and discuss all of the adverse rulings in this case, we must order rebriefing.

An attorney's request to withdraw from appellate representation on the ground that the appeal is wholly without merit must be accompanied by a brief including an abstract. Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997). The 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 made by either party with an explanation concerning why each adverse ruling is not a meritorious ground for reversal. Adaway v. State, 62 Ark. App. 272, 972 S.W.2d 257 (1998). This requirement would also pertain to rulings made during all proceedings, including jury selection. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915, supp. opinion on denial of reh'g, 74 Ark. App. 280-A, 53 S.W.3d 48 (2001); McCoy v. State, 74 Ark. App. 414, 49 S.W.3d 154, supp. opinion on grant of reh'g, 75 Ark. App. 423-A, 52 S.W.3d 510 (2001). Lewis's counsel filed a brief pursuant to his motion to withdraw and submitted that no reversible errors were committed at the trial court level and that an appeal would be wholly without merit. While two adverse rulings are abstracted and one is discussed, counsel did not abstract or discuss other adverse rulings.

In Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000), this court ordered rebriefing in an Anders case where the appellant's counsel failed to discuss the sufficiency of the evidence. In so doing, we stated that Anders v. California "requires that after an appellant's counsel submits a no-merit brief, this court conduct a full examination of the proceedings to decide if the case is wholly frivolous.' . . . We undertake this thorough review of the full record regardless of whether or not the appellant identifies the trial court's errors." Sweeney, supra. Several months later, in Dewberry v. State, 341 Ark. 170, 15 S.W.3d 671 (2000), the supreme court likewise ordered rebriefing of an Anders case where, although the State had "cured" the abstracting deficiencies by supplemental abstract containing the omitted adverse rulings, counsel's argument failed to address these rulings. Id.

In accordance with this precedent, and because of counsel's failure to comply with Rule 4-3(j), we order rebriefing. However, we note that the United States Supreme Court has stated that an Anders brief may be submitted in lieu of a merit appeal only when such an appeal would be "wholly frivolous." This court has also ordered rebriefing in adversary form where we have found that not to be the case. Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994). The test is not whether counsel thinks the trial court committed no reversible error, but rather whether the points to be raised on appeal would be "wholly frivolous." Ofochebe v. State, 40 Ark. App. 92, 844 S.W.2d 373 (1992). If any of the issues raised are not wholly frivolous, we do not determine whether error was committed, but order rebriefing in adversary form. Id. Consequently, if an appeal from even one of the ten adverse rulings made in the instant case would not be wholly frivolous, the Anders procedure should not be employed.

On rebriefing, counsel may elect to submit either a brief in adversary form or one in compliance with Rule 4-3(j) as to all adverse rulings contained in the record.

Rebriefing ordered.

Stroud, C.J., and Hart, J., agree.