ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

MARLON DETRIC MILES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-939

June 25, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION

[NO. CR2002-377]

HON. JOHN B. PLEGGE, JUDGE

MOTION OF COUNSEL TO WITHDRAW DENIED; REBRIEFING ORDERED

Marlon Detric Miles was charged with being a felon in possession of a firearm. After a bench trial, he was convicted and sentenced to five years in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j), appellant's attorney has filed a motion to withdraw on grounds that the appeal is without merit. The motion is accompanied by an abstract of the proceedings below, including all objections and motions decided adversely to appellant, and by a brief referring to everything in the record that might arguably support an appeal.

From our review of the record and the brief presented to us, we are not convinced that appellant's appeal is wholly without merit, or "so frivolous that it may be decided without an adversary presentation." Penson v. Ohio, 488 U.S. 75, 82 (1988). We find at least an

arguable issue regarding whether the trial court erred in overruling appellant's objection to the admission of his answer to a question posed by a police officer after appellant had been handcuffed and made to kneel on the side of the road but, admittedly, before he was given any Miranda warnings. While we in no way mean to suggest how we would decide the question, we direct that appellant's attorney file a brief that develops an adversarial presentation of this issue and any others that he may deem appropriate.

Counsel's motion to withdraw is denied. A new briefing schedule is established, with appellant's brief being due on or before August 4, 2003.

Hart and Robbins, JJ., agree.