ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

April 19, 2001

JERRY LEE MARSHALL

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-157

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF CLEVELAND COUNTY, NO. CR 99-87, HON. LARRY CHANDLER, JUDGE]

REMANDED

On August 16, 2000, judgment was entered reflecting that Jerry Lee Marshall had been found guilty by a jury of aggravated assault for which a term of forty-eight months' imprisonment was imposed. Imposition of an additional twenty-four months' imprisonment was suspended. Marshall was represented at trial by his retained attorney, Don Gillaspie. No appeal was taken, and Marshall now seeks 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 Marshall contends that he advised Mr. Gillaspie within the thirty days allowed for filing a timely notice of appeal under Rule 2(a)(1) of the Rules of Appellate Procedure-Criminal that he desired to appeal from the judgment. 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 request an affidavit from the trial attorney in response to the allegations in themotion. There is no order relieving Gillaspie 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-day period to file a timely notice of appeal. 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. Gillaspie, in his affidavit, states that he discussed whether to appeal with petitioner at length and that at no time did petitioner ever ask that he perfect an appeal.

Petitioner and attorney Gillaspie's claims pertaining to whether petitioner advised Gillaspie that he desired Gillaspie to appeal from the judgment 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 Gillaspie within the time period allowed for filing a notice of appeal that he desired to appeal. 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.