ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 22, 2001

WILBERT JACKSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 97-79

MOTION FOR BELATED APPEAL OF ORDER AND APPOINTMENT OF COUNSEL [CIRCUIT COURT OF LITTLE RIVER COUNTY, NO. CR 89-41, HON. TED C. CAPEHEART, JUDGE]

MOTION TREATED AS MOTION TO REINSTATE APPEAL OF ORDER AND GRANTED

In 1989, Wilbert Jackson was found guilty of two counts of theft of property and sentenced as a habitual offender to an aggregate term of twenty-six years' imprisonment. The court of appeals affirmed. Jackson v. State, CACR 90-45 (November 14, 1990).

At the time Jackson was convicted our postconviction remedy was embodied in Criminal Procedure Rule 36.4. Rule 36.4 required the convicted defendant to file within thirty days of sentencing a motion challenging the judgment if he was dissatisfied with his trial attorney's representation. In 1996, Jackson filed a petition for writ of habeas corpus in the United States District Court alleging that he had been denied counsel at a critical stage of the proceedings pursuant to Ark. R. Crim. P. 36.4. The district court concluded that a Rule 36.4 proceeding was in the nature of a motion for new trial and thus a petitioner under the rule was entitled to counsel just as a defendant is entitled to counsel at trial and on direct appeal of the judgment of conviction. Accordingly, the court issued an order declaring that the writ would issue in one-hundred twenty days if counsel were not appointed for Jackson in circuit court to pursue Rule 36.4 relief.

In accordance with the writ, the circuit court appointed counsel for petitioner Jackson and a hearing was held on his allegations of ineffective assistance of counsel. The petition was denied, and counsel perfected an appeal to this court. We affirmed the lower court's order on the basis of the inadequacy of the abstract in the appellant's brief that precluded our review of the issues raised on appeal. Jackson v. State, CR 97-79 (March 19, 1998).

Petitioner then filed another petition for writ of habeas corpus in federal court in which he argued that he had been denied effective assistance of counsel on appeal from the Rule 36.4 order. The federal court reiterated its holding that a petitioner under Rule 36.4 is entitled to the same adequacy of representation as the defendant in a criminal trial and on direct appeal of a judgment of conviction and granted a conditional writ of habeas corpus. The State was afforded ninety days to proceed with a "belated appeal" of the Rule 36.4 order. Jackson v. Norris, No. 5:99CV00070JFF, Memorandum and Order (January 5, 2001).

To avoid vacation of the judgment against petitioner, the State filed the instant motion asking that counsel be appointed and petitioner Jackson allowed to appeal the Rule 36.4 order. Because the appeal of the Rule 36.4 order has already been docketed in this court in 1997, we will treat the motion as a motion to reinstate that appeal and grant it. See Davis v. State, 317 Ark. 322, 877 S.W.2d 93 (1994); Clay v. State, 315 Ark. 462, 866 S.W.2d 413 (1993). Attorney Charles Kester is appointed to represent petitioner Jackson in a second appeal of the order. Our clerk is directed to establish a briefing schedule for the appeal.

Motion granted

.