DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CACR02-1110

JUNE 25, 2003

EARNEST BRITMAN AN APPEAL FROM THE MISSISSIPPI

APPELLANT COUNTY CIRCUIT COURT

v. [CR-2001-183 F]

STATE OF ARKANSAS HONORABLE JOHN FOGLEMAN,

APPELLEE JUDGE

REBRIEFING ORDERED

Following a bench trial, Earnest Britman was convicted of DWI fourth offense, driving on a suspended license, and refusal to submit to blood alcohol testing. He was sentenced to one year's detention in a regional punishment facility and ten days in the county jail. Mr. Britman also received a suspended imposition of sentence for three years, was fined $1,000 and was ordered to pay court costs. The court further ordered that Mr. Britman attend an alcohol rehabilitation program.

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, Mr. Britman's counsel filed a motion to withdraw on the grounds that the appeal is without merit. The motion was accompanied by a brief purportedly referring to everything in the record that might arguably support anappeal. The clerk of this court furnished Mr. Britman with a copy of counsel's brief and notified him of his right to file pro se points for reversal. Mr. Britman failed to file points for reversal. We order rebriefing.

The abstract and record before us is silent as to Mr. Britman's waiver of his right to trial by jury. The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right to a trial by jury. Davis v. State, Ark. App. , 97 S.W.3d 921 (2003). The right of trial by jury is also preserved by Ark. Const. art. 2, § 10, which states that the right remains inviolate and extends to all cases at law. Id. It has been said that the right to a jury trial is so fundamental that if it is denied, a serious error results. See Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). However, article 2, §7, of the Arkansas Constitution provides that the right to trial by jury may be waived by the parties in all cases in the manner prescribed by law. Davis v. State, supra.

In a criminal trial, it is the trial court's burden to ensure that if there is a waiver of the right to trial by jury, the defendant waives the right in accordance with the Arkansas Rules of Criminal Procedure. Id. To waive a jury trial, a defendant must personally do so in writing or verbally in open court, the prosecutor must assent, and the trial court must approve. Maxwell v. State, 73 Ark. App. 45, 41 S.W.3d 402 (2001). As an alternative, he may do so through counsel if the waiver is made in open court and in the presence of the defendant; a verbatim record shall be made and preserved if the waiver is made in open court. See id. The record or the evidence must demonstrate that the defendant made a knowing, intelligent, and voluntary relinquishment of his right to trial by jury. Id. Here, weare unable to ascertain if Mr. Britman waived his right to trial by jury. Counsel should supplement the record to reflect the waiver of a jury trial if it in fact occurred. The denial of the right to trial by jury is potentially adverse to Mr. Britman.

Accordingly, the record has been reviewed in accordance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We conclude that the denial of the right to trial by jury is potentially adverse; therefore, we order rebriefing.1

Rebriefing ordered.

Stroud, C.J., and Crabtree, J., agree.

1 Because the record is silent on this question, counsel may deem it appropriate to seek leave of the court to supplement the record. We also note that counsel is not bound by his previous no-merit brief if, after reviewing the entire record, he determines that reversible error has been committed.