ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 22, 2001

JEFFERY JACKSON

a/k/a Jeffrey Jackson

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-1147

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF GRANT COUNTY, NO. CR 99-14-2, HON. PHILLIP H. SHIRRON, JUDGE]

REMANDED

On April 13, 1999, judgment was entered reflecting that Jeffery Jackson had been found guilty by a jury of rape and violation of a minor in the first degree. An aggregate sentence of 120 months' imprisonment and a fine of $5,000 were imposed. Jackson was represented at trial by his appointed attorney, Philip C. Wilson. No appeal was taken, and Jackson has filed a pro se motion here 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 Jackson contends that the day after he was convicted he contacted Mr. Wilson and asked him to file a notice of appeal. It is the practice of this court when a pro se motion for belated appeal is filed and the record does not contain an order relieving trial counsel to requestan affidavit from the trial attorney in response to the allegations in the motion. There is no order relieving Wilson in the partial record filed with the motion in this case. 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, however, that a defendant may waive his right to appeal by his failure to inform counsel of his desire to appeal within the thirty days allowed for filing a timely notice of appeal under Rule 4 (a) of the Rules of Appellate Procedure. 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. Wilson in his affidavit states that he and attorney Paul Lancaster were appointed by the trial court to represent petitioner. As Mr. Lancaster's name did not appear on the judgment and petitioner makes no reference to Lancaster in the motion for belated appeal, no affidavit was requested from him. If Lancaster was indeed included in the order appointing counsel, his obligation would be the same as that of Wilson.

Wilson avers that at no time did petitioner ask him to appeal the judgment. He concedes that no order was entered relieving him as counsel. As Wilson was not relieved as counsel, he was obligated to perfect the appeal, unless petitioner Jackson waived his right to appeal by not informing him that he desired an appeal within the thirty days allowed to file a timely notice of appeal. Parker v. State, 303 Ark. 185, 792 S.W.2d 619 (1990). See also Davis v. State, 293 Ark. 203, 736 S.W.2d 281 (1987).

Petitioner's and attorney Wilson's claims pertaining to whether petitioner advised Wilson

that he desired Wilson to appeal are in direct conflict. Because the proper disposition of the motion for belated appeal in this case requires findings of fact which must be made in the trial court, we remand this matter to the circuit court for an evidentiary hearing on the issue of whether counsel was informed by Jackson within the time period allowed for filing a notice of appeal that he desired to appeal. The question of whether attorney Lancaster was co-counsel; and, if so, whether petitioner contacted him in a timely manner about perfecting an appeal should also be addressed at the evidentiary hearing. The trial court is directed to enter Findings of Fact and Conclusions of Law within ninety days and submit the findings and conclusions to this court with the transcript of the evidentiary hearing.

Remanded.