Opinion
No. RC 89-80
Opinion delivered February 12, 1990
APPEAL ERROR — COUNSEL FILED TIMELY NOTICE OF APPEAL AND DESIGNATION OF RECORD, BUT RECORD WAS NEVER LODGED ON APPEAL — PETITION TO HAVE RECORD BROUGHT UP FOR PURPOSE OF A BELATED APPEAL GRANTED. — Where counsel had filed a timely notice of appeal and designation of record, but the record was never lodged on appeal, the court granted the petition to have the record brought up for the purposes of a belated appeal since the failure of counsel to perfect an appeal where a defendant requests an appeal amounts to the denial of the defendant's right to effective assistance of counsel.
Pro Se Petition for Writ of Certiorari granted.
Walter Strode, for petitioner.
Steve Clark, Att'y Gen., by: Olan W. Reeves, Asst. Att'y Gen., for respondent.
The petitioner Walter Strode was found guilty by a jury of theft of property on July 19, 1988. (For some reason not clear from the record, the judgment was not entered until February 25, 1989.) On August 18, 1989, Michael R. Salamo, the retained attorney who represented the petitioner at trial, filed a timely notice of appeal and designation of record. The record was never lodged on appeal. Petitioner has now lodged a partial record and filed a pro se petition for writ of certiorari in which he requests that the record be brought up for the purposes of a belated appeal. He contends that Salamo abandoned the appeal even though Salamo knew that he was free on appeal bond and desired to perfect an appeal. Petitioner now claims to be indigent. On September 18, 1989, our Committee on Professional Conduct suspended for two years Salamo's license to practice law.
The petition before us is in the nature of a motion for rule on the clerk and request for a writ of certiorari since there was a timely notice of appeal filed in this case. We grant the petition to proceed on appeal because the failure of counsel to perfect an appeal where a defendant requests an appeal amounts to the denial of the defendant's right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). The filing of the notice of appeal in this case clearly indicates that the defendant expressed his desire to appeal. As counsel abandoned his client, his representation was ineffective.
Petitioner has alleged that he is indigent and filed with this court the appropriate affidavit in support of the assertion of indigency. As the state has not taken issue with the claim of indigency, we will appoint counsel to represent the petitioner on appeal. A writ of certiorari to bring up the record shall issue and the clerk is directed to lodge the record when it is received.
A copy of this opinion is being forwarded to the Arkansas Supreme Court Committee on Professional Conduct.
Petition granted.