ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

ROBERT LEE HUNTER, JR.,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR02-1036

JUNE 25, 2003

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT,

NO. CR2002-II9 IV,

HON. EDWARD T. SMITHERMAN, JUDGE

REBRIEFING ORDERED

Robert Lee Hunter was convicted by a jury of possession of a controlled substance and of possession of drug paraphernalia. He was sentenced to respective sentences of 324 months' imprisonment and 12 months' imprisonment, the sentences to run concurrently. His attorney has filed a motion to withdraw on the grounds that the appeal has no merit; the motion was accompanied by a brief purportedly containing and addressing all rulings adverse to the defendant by the trial court. See Anders v. California, 386 U.S. 738 (1967); Ark. Sup. Ct. R. 4-3(j)(1) (2003). Hunter has filed pro se points pursuant to Ark. Sup. Ct. R. 4-3(j)(2), and the State has filed a brief responding to his points of appeal.

For the reasons explained below, we conclude that counsel's no-merit brief is not in compliance with Anders v. California, supra, and Ark. Sup. Ct. R. 4-3(j)(1), which reads in pertinent part:

A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and Addendum. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract and Addendum of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the circuit court.

(Emphasis added.)

First of all, we find that defense counsel has not complied with the portion of Rule 4-3 that requires a list of all rulings adverse to the defendant with an explanation as to why each is not a meritorious ground for reversal. Although counsel lists and discusses in the argument portion of her brief seven rulings adverse to Hunter by the circuit court, our review of the record reveals that these were not the only objections, motions, and requests decided adversely to him. By way of example, the trial court sustained an objection by the prosecutor that Hunter's counsel was leading him in direct testimony by asking if drugs he possessed were for his own use; additionally, at sentencing the trial court denied a portion of a pro se motion by Hunter requesting a thirty-day delay in sentencing so that he might seek legal counsel on the grounds of ineffective assistance of counsel.

We also find that defense counsel has failed to comply with the requirement of Rule 4-3(j)(1) that the abstract and Addendum of the brief shall contain all rulings adverse to the defendant made by the circuit court. Neither the abstract nor Addendum of counsel's brief includes the third, fifth, or sixth rulings that are listed and discussed in the argument portionof her brief.1

Because defense counsel does not include in the argument portion of her brief all rulings adverse to Hunter, and because the abstract and Addendum fail to contain all adverse rulings, 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," and that this court has ordered rebriefing in adversary form where we have found that not to be the case. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). Consequently, if an appeal from even one of the adverse rulings made in the instant case would not be wholly frivolous, the Anders procedure should not be employed.

Motion denied; rebriefing ordered.

Gladwin and Griffen, JJ., agree.

1 The State's brief, written in response to Hunter's pro se points, includes in its abstract the adverse ruling that coincidentally is the subject of defense counsel's third no-merit point.