Provo City v. Stacy

----ooOoo----

Provo City,
Plaintiff and Appellee,

v.

James Dennis Stacy,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991032-CA

F I L E D
November 30, 2000 2000 UT App 337 -----

Fourth District, Provo Department
The Honorable Donald J. Eyre

Attorneys:
Dana M. Facemyer, Provo, for Appellant
Vernon F. Romney, Provo, for Appellee

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Before Judges Greenwood, Orme, and Thorne.

PER CURIAM:

Defendant's appellate counsel filed a memorandum on October 20, 2000 requesting permission to withdraw. Counsel represented that after review of the record, he found no issues warranting appeal. However, even if counsel believes the issues on appeal are entirely without merit, he cannot be relieved of his obligation to assist his client simply by filing a memorandum. Instead, counsel must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and State v. Clayton, 639 P.2d 168, 169-70 (Utah 1981).

As we emphasized recently in State v. Wells, 2000 UT App 304,¶7, Anders and Clayton require that an attorney's request to withdraw "must be accompanied by a brief referring to anything in the record that might arguably support the appeal." Before filing the brief, counsel must furnish the brief to the client, and the client must be afforded time to raise additional issues. Id. at ¶¶7,9. If the client raises further issues, the attorney must brief those issues in the opening brief or in a supplemental brief. Id. at ¶10. In this case, the certificate of service filed with counsel's memorandum does not indicate that the memorandum was even served on defendant.(1) The memorandum itself does not comply substantively or procedurally with Anders or the Utah cases following it, nor does it constitute, or substitute for, a brief complying with rule 24 of the Utah Rules of Appellate Procedure.

Accordingly, the memorandum filed October 20, 2000 is stricken. Counsel is ordered to file, in accordance with the Utah Rules of Appellate Procedure, either a regular brief or a brief complying fully with the requirements of Anders, Clayton, and Wells within 40 days of the date of this order. Alternatively, the parties may stipulate to dismiss the appeal in accordance with rule 37(b). We note that appellant's brief was originally due on June 9, 2000 and we have granted several extensions of time to allow counsel to file his brief. Counsel should expect that no further extensions will be granted. Moreover, any failure to comply with this directive will be treated as contempt of court.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. Counsel represents that defendant agrees that no appealable issues exist. If an appellant guaranteed the right to effective assistance of counsel chooses to dismiss his appeal voluntarily, the correct procedure under Utah Rule of Appellate Procedure 37(b) is for the parties to file a stipulation accompanied by defendant's "personal affidavit demonstrating that appellant's decision to dismiss the appeal is voluntary and made with knowledge of the right to an appeal and an understanding of the consequences of voluntary dismissal."