Opinion
CA CR 99-206
Opinion delivered January 5, 2000
1. CRIMINAL PROCEDURE — ARK.R.CRIM.P. 33. AMENDED — APPELLANT'S TRIAL HELD BEFORE AMENDMENT — CASE REMANDED. — The supreme court amended Rule 33.1 of the Arkansas Rules of Criminal Procedure on April 9, 1999, to require a specific directed-verdict motion in bench trials to preserve sufficiency-of-the-evidence challenges for appellate review; where appellant's trial was held on October 27, 1998, a directed-verdict motion was not required to preserve this issue; accordingly, the case was remanded for appellant's trial counsel to brief the issue.
2. APPEAL ERROR — ARK SUP. CT. R. 4-3(j) — REQUIREMENTS OF. — Pursuant to Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, the clerk of the court must furnish an appellant with a copy of his counsel's brief and notify him of his right to raise any points that he believes would support a merit appeal; Rule 4-3(j) requires only that the points be listed, in either typed or handwritten form; the filing of a "brief" in which an appellant not only raises the meritorious points, but also argues their merits is wholly unnecessary, because Anders v. California, 386 U.S. 738 (1967), requires that after an appellant's counsel submits a no-merit brief, the appellate court must conduct a full examination of the proceedings to decide if the case is "wholly frivolous"; this thorough review of the full record is undertaken regardless of whether or not the appellant identifies the trial court's errors.
3. APPEAL ERROR — MOTION TO WITHDRAW — DENIED. — Where appellant's trial counsel filed a motion to withdraw on the grounds that there were no meritorious issues to support an appeal but failed to discuss the sufficiency of the evidence, he did not comply with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals and the Anders procedural blueprint; his motion to withdraw was denied.
Appeal from Pulaski Circuit Court; John W. Langston, Judge; remanded for rehearing.
Dover Dixon, P.A., by: James R. Rhodes III, for appellant. Mark Pryor, Att'y Gen., by: Vada Berger, Asst. Att'y Gen., for appellee.
Robert S. Sweeney was convicted in a bench trial of commercial burglary and was sentenced as a habitual offender to 120 months in the Arkansas Department of Correction. 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, Sweeney's counsel has filed a motion to withdraw on the grounds that there are no meritorious issues that would support an appeal. This motion was accompanied by a brief in which all adverse rulings were abstracted. The argument section of the brief adequately explains why the adverse evidentiary rulings could not support a meritorious appeal, however, Sweeney's counsel has failed to discuss the sufficiency of the evidence. In the brief, he asserts that the issue was not preserved below due to a failure to make a directed-verdict motion. This assertion is not correct.
[1] On April 9, 1999, the supreme court amended Rule 33.1 of the Arkansas Rules of Criminal Procedure to require a specific directed-verdict motion in bench trials to preserve sufficiency-of-the-evidence challenges for appellate review. Because Sweeney's trial was held on October 27, 1998, a directed-verdict motion was not required to preserve this issue. See Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). Accordingly, we remand this case to Sweeney's trial counsel to brief this issue. See Adaway v. State, 62 Ark. App. 272, 972 S.W.2d 257 (1998). [2] We note that pursuant to Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals the clerk of this court furnished Sweeney with a copy of his counsel's brief and notified him of his right to raise any points that he believed would support a merit appeal. Although Rule 4-3(j) requires only that the points be listed, in either typed or handwritten form, Sweeney filed a "brief" in which he not only raised two points, but also argued their merits. The latter was wholly unnecessary, because Anders v. California, supra, 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." 386 U.S. at 744. We undertake this thorough review of the full record regardless of whether or not the appellant identifies the trial court's errors.
This case is distinguishable from Alexander v. State, 55 Ark. App. 148, 934 S.W.2d 927 (1996), in that sufficiency of the evidence was at least raised by the appellant and considered not meritorious by appellant's counsel. In the instant case, Sweeney's counsel proceeds from the false premise that the issue was not preserved. Logically he could not have given the issue a reasoned evaluation on the merits if he thought it was not preserved.
[3] Because Sweeney's trial counsel has failed to comply with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals and the Anders procedural blueprint, we deny his motion to withdraw and remand for rebriefing on the sufficiency-of-the-evidence issue. By this opinion, we do not foreclose a decision by Sweeney's counsel to address this issue in a merit brief.
Remanded for rebriefing.
GRIFFEN and MEADS, JJ., agree.