ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION II

KENNETH TRIGLETH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-175

January 21, 2004

APPEAL FROM THE CHICOT

COUNTY CIRCUIT COURT

[CR2001-57-2]

HONORABLE SAMUEL B. POPE,

CIRCUIT JUDGE

REMANDED FOR REBRIEFING

John F. Stroud, Jr., Chief Judge

Appellant, Kenneth Trigleth, and a man named Charley Neblett were co-defendants who were tried separately. Appellant was tried by a jury and found guilty of the offenses of possession of drug paraphernalia with intent to manufacture methamphetamine and possession of methamphetamine. He was sentenced to five years in the Arkansas Department of Correction with respect to the first offense and, on the second offense, five years' probation following his physical release from prison on the first offense. 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, appellant's attorney has filed a motion to withdraw as counsel on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract and brief purportedly referring to everything in the record that might arguably support the appeal, including motions, objections, and requests decided adversely to appellant, and a statement of reasons why none of those rulings would be a meritorious ground for reversal. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file pro se points within thirty days. Appellant did not do so. Our review of the record has revealed six additional adverse rulings that were not briefed by appellant's counsel.

Appellant's discussion of adverse rulings in this case can be grouped into the following categories: (1) motion to suppress, (2) hearsay objections regarding what "cooks" do in manufacturing methamphetamine, (3) lack-of-foundation objections, (4) hearsay objection regarding testimony concerning relationship between drain opener and other items, (5) relevancy objections, (6) motions for directed verdict, (7) refusal to grant mistrial, (8) objection during State's closing argument in punishment phase. Our review of the record revealed at least the following additional adverse rulings: (1) objection regarding search warrant, (2) "asked-and-answered" objection, (3) hearsay objection regarding rationale for police looking for Neblett's vehicle, (4) objection to use of term "them," (5) relevance objection to introduction of bag of trash, (6) objection to timing of introduction of exhibit on redirect.

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. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). The brief must contain an argument section that consists of a list of all rulings that were adverse to the defendant 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). Because appellant's counsel has failed to abstract and discuss all of the adverse rulings in this case, he has failed to comply with Rule 4-3(j). We therefore order rebriefing.

As we noted in Eads v. State, 74 Ark. App. 363, 365-66, 47 S.W.3d 918, 919 (2001):

[T]he 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 . . . 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 either submit 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.

Pittman and Bird, JJ., agree.