Opinion
No. 90-SC-492-DG.
December 27, 1990.
Appeal from Magoffin Circuit Court; John C. Cornett, Judge.
David Crate Holbrook, pro se.
Frederic J. Cowan, Atty. Gen., Joseph R. Johnson and David A. Sexton, Asst. Attys. Gen., Frankfort, for appellee.
Appellant was convicted in the Magoffin Circuit Court for first degree manslaughter in September of 1983 and sentenced to ten years imprisonment. Thereafter appellant's attorney failed to file a notice of appeal pursuant to CR 73.02.
Proceeding pro se, appellant filed a motion in the Court of Appeals, in January of 1990, alleging ineffective assistance of counsel and requesting leave to file a belated appeal. Thompson v. Commonwealth, Ky., 736 S.W.2d 319 (1987); Commonwealth v. Wine, Ky., 694 S.W.2d 689 (1985). The Court of Appeals order dated February 21, 1990 required appellant to move for an evidentiary hearing on the issues of ineffective assistance of counsel and waiver of right to appeal in the Magoffin Circuit Court within twenty days. The Court of Appeals held appellant's motion in abeyance pending the trial court's findings of fact.
The sole issue in this case is whether appellant complied with the Court of Appeals' order. The Court of Appeals denied appellant's motion for a belated appeal on June 6, 1990 stating noncompliance with its order as grounds for the denial. Specifically, the appellate court held that appellant failed to file the motion for an evidentiary hearing in Magoffin Circuit Court. On August 29, 1990, this Court granted discretionary review.
Appellant contends that he complied with the Court of Appeals' order by timely filing a motion in the Magoffin Circuit Court requesting an evidentiary hearing. The record shows that appellant's motion for an evidentiary hearing was, in fact, filed with the Magoffin Circuit Court on March 5, 1990. The record further shows that a copy of the motion was file-stamped "received" by the Court of Appeals on the same date.
The Commonwealth is in agreement with appellant and requests that this Court reverse the Court of Appeals' order and remand this case to the Magoffin Circuit Court for further development of the record. Thompson, 736 S.W.2d at 322 (1987).
This case is reversed and remanded to the trial court for an evidentiary hearing on the issues of ineffective assistance of counsel and waiver of right to appeal. The findings of fact shall be sent to the Court of Appeals.
All concur.