42 FRANKLIN V. STATE [317
Cite as 317 Ark. 42 (1994) Ricky FRANKLIN v. STATE of Arkansas
CR 94-407 875 S.W.2d 836 Supreme Court of Arkansas
Opinion delivered May 9, 1994 1. CRIMINAL PROCEDURE — REPRESENTATION BY TRIAL COUNSEL — REPRESENTATION CONTINUES UNLESS PERMITTED TO WITHDRAW BY COURT. — Criminal Procedure Rule 36.26 provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout appeal, unless permitted by the trial court or the appellate court to withdraw; once the notice of appeal is filed with the circuit clerk only the appellate court can relieve counsel of the obligation to proceed with the appeal. 2. APPEAL & ERROR — CONVICTED DEFENDANT MAY WAIVE HIS RIGHT TO APPEAL — NO SUCH WAIVER HERE. — A convicted defendant can waive his right to appeal by not informing counsel that he desires to appeal, but the timely filing of a notice of appeal by the appellant clearly demonstrated that petitioner did not waive his appeal right. 3. CRIMINAL PROCEDURE — DIRECT APPEAL OF A CONVICTION IS A MATTER OF RIGHT — SUCH RIGHT CANNOT BE CUT OFF BY ATTORNEY'S FAILURE TO FOLLOW THE RULES. — The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his first appeal when his counsel has failed to follow mandatory appellate rules; to cut off a defendant's right to appeal because of his attorney's failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. 4. ATTORNEY & CLIENT — ATTORNEY DIRECTED TO SHOW CAUSE WHY
ARK.] FRANKLIN V. STATE 43 Cite as 317 Ark. 42 (1994) APPEAL NOT TIMELY MADE — APPELLANT'S PRO SE MOTION FOR RULE ON THE CLERK REMAINS PENDING. — The appellant's attorney was directed to appear before the court and show cause why he should not be held in contempt of court for failure to lodge the record on appeal in a timely manner, or in the alternative, to file a motion to be relieved as counsel in the appeal in accordance with the prevailing rules of procedure in a criminal case; the pro se motion for rule on clerk filed by petitioner remains pending until the show cause hearing is completed. Pro Se Motion for Rule on the Clerk; Lance Hanshaw, Judge; motion pending. Appellant, pro se. No response. PER CURIAM. In 1992 petitioner Ricky Franklin was found guilty by a jury of two counts of burglary and sentenced to two consecutive terms of imprisonment of twenty years. A fine of $20, 000.00 was also imposed. Petitioner was represented at trial by his retained attorney, C.P. Christian, who filed a timely notice of appeal of the judgment. The appeal was not perfected, and petitioner has now tendered a partial record of the lower court proceedings with a motion for rule on clerk, asking that the appeal be allowed to proceed. [1-3] Criminal Procedure Rule 36.26 provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout appeal, unless permitted by the trial court or this court to withdraw. Once the notice of appeal is filed with the circuit clerk only the appellate court can relieve counsel of the obligation to proceed with the appeal. Sup. Ct. Rule 4-3 (j) (1).' A convicted defendant can waive his right to appeal by not informing counsel that he desires to appeal, but the timely filing of a notice of appeal in the instant case clearly demonstrates that petitioner did not waive his appeal right. See Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989). Attorney Christian did not receive permission from the appellate court to be relieved of his obligation to proceed with the appeal and 'When petitioner was convicted in 1992, Supreme Court Rule 11 (h) was in effect. Rule 11 (h) in all pertinent respects was identical to Rule 4-3 (j) (1) in its requIrement that counsel be relieved by the appellant court once notice of appeal had been given.
44 FRANKLIN V. STATE [317 Cite as 317 Ark. 42 (1994) thus appears to have abandoned the appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his first appeal when his counsel has failed to follow mandatory appellate rules. See Rea-gan v. State, 316 Ark. 511, 872 S.W.2d 396 (1994), citing Evitts v. Lucey, 469 U.S. 387 (1985). To cut off a defendant's right to appeal because of his attorney's failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987). [4] Mr. Christian shall be directed by a separate Per Curiam order to appear before this court on June 6, 1994, at 9:00 a.m. and show cause why he should not be held in contempt of this court for failure to lodge the record on appeal in a timely manner, or in the alternative, to file a motion to be relieved as counsel in the appeal in accordance with the prevailing rules of procedure in a criminal case. The pro se motion for rule on clerk filed by petitioner will remain pending until the show cause hearing is completed. Motion pending.
ARK.] 45 Ricky FRANKLIN v. STATE of Arkansas
CR 94-407 875 S.W.2d 836 Supreme Court of Arkansas
Opinion delivered May 9, 1994 Pro Se Motion for Rule on the Clerk; show-cause order issued. Appellant, pro se. No response. C. P. Christian, attorney for petitioner Ricky Franklin, is directed to appear before this court on June 6, 1994 at 9 a.m. and show cause why he should not be held in contempt of this court for failure to perfect an appeal of a judgment of conviction rendered against petitioner Ricky Franklin. Order issued.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.