ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 15, 2001

HERMAN FOLK

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 99-1319

PRO SE MOTION TO RELIEVE COUNSEL, TO APPOINT OTHER COUNSEL, AND TO PROCEED IN FORMA PAUPERIS ON APPEAL [CIRCUIT COURT OF DREW COUNTY, NO. CR 97-237-1-2, HON. SAMUEL B. POPE, JUDGE]

MOTION GRANTED IN PART AND DENIED IN PART

On August 4, 1998, judgment was entered reflecting that Herman Folk had been found guilty by a jury of delivery of a controlled substance and sentenced to 120 months' imprisonment. Folks's retained attorney, John Kearney, did not file a notice of appeal from the judgment, and Folks sought by pro se motion to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure--Criminal. We determined that Mr. Kearney was responsible for proceeding with the appeal and granted the motion. Folk v. State, CR 99-1319 (November 30, 2000). Kearney was not appointed to represent appellant when the motion for belated appeal was granted but simply found to be attorney-of-record and thus responsible for the appeal.

Shortly after the motion for belated appeal was granted, appellant Folk filed the instant motion asking that Mr. Kearney be relieved as counsel and another attorney appointed torepresent him. Appellant contends that Mr. Kearney has not rendered effective representation to him in the past, that he and Kearney have irreconcilable differences, and that there is an unspecified conflict of interest in Kearney's representing him on appeal. Appellant also states that he is now indigent and that he forced Kearney to return "all fees" to him and that he cannot afford to retain other counsel.

At this point we cannot say, based on appellant's conclusory allegations, that Mr. Kearney is incapable of rendering effective assistance of counsel to appellant on appeal. We will, however, accept appellant's assertion of indigency, which has not been contested by the State, and appoint Mr. Kearney to represent appellant so that he can be paid a suitable fee for representing the appellant and so that the record may be brought up at public expense.

Motion granted in part and denied in part.