Michael S. Reeves v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 16, 2002

MICHAEL S. REEVES

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-125

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF DESHA COUNTY, NO. CR 2001-25-2-A, HON. SAM POPE, JUDGE]

MOTION GRANTED

On September 21, 2001, judgment was entered reflecting that Michael Reeves had been found guilty by a jury of the offense of being a felon in possession of a firearm and misdemeanor possession of body armor. An aggregate term of 60 months' imprisonment and fine of $7,000 were imposed. Reeves was represented at trial by his retained attorney Dale West. No appeal was taken, and Reeves now seeks to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure--Criminal, which permits a belated appeal in a criminal case in some instances.

Petitioner Reeves states that an appeal bond was set and he was released. He contends that he did not know until November 9, 2001, when an order was issued revoking the bond that a notice of appeal had not been filed by Mr. West.

It is the practice of this court when a pro se motion for belated appeal is filed and therecord does not contain an order relieving trial counsel to request an affidavit from the trial attorney in response to the allegations in the motion. This affidavit is required because Rule 16 of the Rules of Appellate Procedure--Criminal provides in pertinent part that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. We have held repeatedly, however, that a defendant may waive his right to appeal by his failure to inform counsel of his desire to appeal within the thirty-day period to file a timely notice of appeal. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997; Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).

Mr. West in his affidavit admits that petitioner visited his office within the thirty-day period to file a notice of appeal and informed West's office personnel that he desired to appeal. He did not learn of this communication, however, until the time had elapsed to file a timely notice. West concedes that he knew that petitioner had been released on bond pending appeal and that he should have known that West had come to this office and reaffirmed his desire to appeal. He accepts complete responsibility for the failure to perfect an appeal and urges this court to allow a belated appeal.

We have held that an appeal will be allowed where the attorney for a criminal defendant accepts complete responsibility for his failure to conform to procedural rules governing the administration of justice in a criminal case. Donald v. State, 341 Ark. 83, 20 S.W.3d 331 (2000); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). According, the motion for belated appeal of the judgment is granted.

Because Mr. West has never been relieved as counsel, he remains attorney-of-record and responsible for the appeal. Our clerk is directed to lodge the appeal. Counsel is directed to lodge the remainder of the record if it has been prepared or file a petition for writ of certiorari in this court with thirty days to bring up the record, or that portion of it, necessary for the appeal.1 Upon the filing of the complete appeal record, a briefing schedule will be set.

We note that petitioner asks that his appeal bond be reinstated if the appeal is permitted to go forward, a request which we deny at this time. As petitioner is represented by counsel, counsel may file a motion to reinstate the bond if counsel deems it appropriate. Having accepted representation by counsel, petitioner is not entitled to be heard by himself and counsel. See Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1991).

A copy of this opinion shall be forwarded to the Arkansas Supreme Court Committee on Professional Conduct.

Motion granted.

1 In his affidavit, counsel states that he advised petitioner that petitioner was responsible for paying the cost of preparing the transcript for appeal. If counsel now has a good faith belief that petitioner is indigent and cannot afford the transcript cost, he may file in this court a motion for petitioner to be permitted to proceed in forma pauperis and for appointment of himself as counsel on appeal with petitioner's affidavit of indigency appended. If, however, counsel believes petitioner to be capable of paying the cost of the appeal, he may so state in the petition for writ of certiorari and ask that petitioner be required to assume responsibility for all costs associated with the appeal.