ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

TORRIZELL STEVENSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-935

June 25, 2003

APPEAL FROM PULASKI COUNTY CIRCUIT COURT, 4TH DIVISION

[NO. CR 2000-106]

HONORABLE JOHN LANGSTON, CIRCUIT JUDGE

REBRIEFING ORDERED

This is a probation-revocation case. Torrizell Stevenson pled guilty to theft by receiving on June 26, 2000, and was sentenced to four years' probation and fined $250 plus court costs, and given sixty days in the Pulaski County Jail with credit for fourteen days. During his probationary period, Stevenson was arrested for breaking and entering on December 14, 2001. On April 22, 2002, the Pulaski County Court found Stevenson guilty of violating the terms of his probation.

Pursuant to Anders v. California, 368 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of Arkansas Supreme Court and Court of Appeals, Stevenson's counsel filed a motion to withdraw as his attorney, alleging that this appeal is without merit. Counsel has also filed a brief in which shecontends that all adverse rulings are abstracted and discussed. The clerk of this court furnished Stevenson with a copy of counsel's brief and notified him of his right to file pro se points for reversal within thirty days. Stevenson has filed no pro se points for reversal.

At the probation-revocation proceeding, the State presented the testimony of several law enforcement officers who personally observed Stevenson forcing open the trunk of a Lexus automobile. Officer Mike Tracetti testified that upon being questioned at the scene of the crime, Stevenson stated, "I'm the stupidest mother-f***** in the world right now. All I wanted was a good radio." The owner of the vehicle testified that the damage to her automobile was roughly $1,600.

At the conclusion of the hearing, Stevenson was found guilty of willfully violating the terms of his probation. He was sentenced at a separate proceeding on May 8, 2002.

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) (emphasis added). 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, 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, 74 Ark. App. 423, 52 S.W.3d 510 (2001).

A review of the record reveals only two adverse rulings. The argument section of the brief adequately explains why the adverse ruling as to Stevenson's motion to dismiss for lack of subjectmatter jurisdiction could not support a meritorious appeal, however, Stevenson's counsel has failed to discuss the second adverse ruling which involves the sufficiency of the evidence.

The Arkansas Supreme Court's decision in Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002) resolves any confusion about whether a circuit court retains jurisdiction to modify a sentence of probation or a suspended sentence under the facts of Stevenson's case. The Moseley court held that a trial court does retain jurisdiction, therefore, the trial court in the present case correctly denied the motion to dismiss for lack of subject matter jurisdiction.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 352 Ark. ---, 98 S.W.3d 433 (2003). In Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000), the supreme court held that Arkansas Rule of Criminal Procedure 33.1, as amended, required a defendant in a revocation hearing to move for dismissal, stating the specific grounds thereof, in order to preserve the issue of sufficiency of the evidence. However, the supreme court in Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), held that the decision in Miner, supra, was incorrect and that the requirements of Rule 33.1, pertaining to motions for dismissal and directed verdict, do not apply to revocation hearings. Consequently, a motion to dismiss is not required to preserve the issue of sufficiency of the evidence in revocation proceedings. Barbee, supra. Moreover, such a motion was made by Stevenson's counsel even though not required, and counsel has failed to discuss this issue in the argument section of this brief.

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 conducts 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 theappellant identifies the trial court's errors." Sweeney, 69 Ark. App. at 9, 9 S.W.3d at 531. 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. 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.

Vaught and Baker, JJ., agree.