Cite as 2011 Ark. App. 733 ARKANSAS COURT OF APPEALS DIVISION I No. CACR10-646 OSCAR PEREZ Opinion Delivered November 30, 2011 APPELLANT APPEAL FROM THE SEBASTIAN V. COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NOS. CR03-255, CR03-687, CR03-STATE OF ARKANSAS 914] APPELLEE HONORABLE J. MICHAEL FITZHUGH, JUDGE REBRIEFING ORDERED RAYMOND R. ABRAMSON, Judge Appellant Oscar Perez was serving a suspended sentence for possession of marijuana with intent to deliver, possession of methamphetamine, possession of a defaced firearm, breaking and entering, and two counts of possession of drug paraphernalia. The State filed an amended petition to revoke on all counts—except the possession of a defaced firearm charge—on the basis that Perez had committed other criminal acts and had failed to pay restitution. After a hearing on the petition to revoke, the trial court granted the revocation and sentenced Perez to a combined total of thirty-one years’ imprisonment on all the underlying counts. Counsel for Perez filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court, asking to be relieved
Cite as 2011 Ark. App. 733 as counsel. On April 6, 2011, this court ordered rebriefing due to deficiencies in the brief. See Perez v. State, 2011 Ark. App. 262. Counsel for Perez has again filed a purported “no-merit brief” citing Anders and Rule 4-3(k)(1), but requests that the case be remanded to correct the judgment and commitment order by striking Perez’s conviction for possession of a defaced firearm. The clerk of this court furnished Perez with a copy of his counsel’s brief and notified him of his right to file pro se points. Perez filed a lengthy statement alleging other irregularities and claims. The State filed a response pursuant to Rule 4-3(k)(3), asserting that there are no meritorious issues requiring reversal and that Perez’s sentence was correct. We again must order rebriefing—this time in adversary form—because counsel for Perez has raised an issue that disputes the legality of his client’s sentence. By asserting that the trial court imposed an illegal sentence, counsel has actually argued that there is a meritorious issue to be appealed. A brief cannot simultaneously be a no-merit brief pursuant to Anders and Rule 4-3(k)(1) and a brief on the merits. Thus, counsel cannot avail himself of the withdrawal procedures set forth in Rule 4-3(k), and we therefore direct counsel to rebrief the case on the merits. See Parmley v. State, 2011 Ark. App. 461 (“When an appeal is submitted to this court under the Anders format and we believe that issues exist that are not wholly frivolous, we are required to deny appellant’s counsel’s motion to withdraw and order rebriefing in adversary form.”). We note that, by ordering rebriefing in adversary form, we are not making any comment on whether the issue has merit. Rather, we are simply holding that counsel has failed to show that an appeal of appellant’s convictions would be wholly 2
Cite as 2011 Ark. App. 733 frivolous. We also note that counsel need not address any of the remaining adverse rulings previously identified as lacking merit. Rebriefing ordered. WYNNE and BROWN, JJ., agree. 3
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