ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 3, 2001

VERA A. ARNOLD

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-277

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-692, HON. JOHN PLEGGE, JUDGE]

MOTION REMANDED TO THE TRIAL COURT FOR EVIDENTIARY HEARING

Vera Ann Arnold was found guilty of attempted capital murder and theft by receiving and sentenced to an aggregate term of forty years' imprisonment. The court of appeals affirmed. Arnold v. State, CACR 99-35 (November 3, 1999). We denied Arnold's petition for review on January 13, 2000, and the mandate was issued that day. Arnold v. State, CR 99-1370 (per curiam order, January 13, 2000).

Arnold subsequently filed in the trial court on January 21, 2000, a timely petition pursuant to Criminal Procedure Rule 37 challenging the judgment.1 On August 2, 2000, the court entered an order denying the petition. On March 6, 2001, Arnold filed the instant pro se motion for belated appeal in which she states that she retained attorney Brendan Donahue in May2000 to represent her with respect to the Rule 37 proceeding and that he failed to protect her right to appeal from the adverse order.

To follow the thrust of petitioner's argument, it is necessary to set out what occurred after the Rule 37 petition was denied. The record lodged with the motion does not reflect any filing by Donahue until after the pro se Rule 37 petition was denied on August 2, 2000. On August 10, 2000, Donahue filed an amended Rule 37 petition and a petition to set aside the order.2 In a letter dated October 5, 2000, the trial court declined to consider the amended Rule 37 petition on the ground that it constituted a petition for rehearing, a pleading not allowed under Rule 37.2(d). On October 13, 2000, Donahue filed a second petition to set aside or modify the August 2, 2000, order in which he argued that the first petition to set aside the order was not in the nature of a petition for rehearing but rather a request for the order to be set aside on the ground that the State's response to the Rule 37 petition was not timely filed. The trial court did not rule on the October 13, 2000, petition to set aside or modify the August 2, 2000, order, and Arnold argues that it was thus deemed denied after thirty days. She asserts that Donahue was obligated to proceed with an appeal of the August 2, 2000, order after that thirty-day period had elapsed because she had informed him that if the August 2, 2000, order was not set aside, she desired to appeal. In an affidavit filed in response to the motion for belated appeal, Mr. Donahue avers that Ms. Arnold did not wish to appeal because she thought it would be futile.

Rule 16 of the Rules of Appellate Procedure--Criminal provides in pertinent part that trialcounsel, 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. There is no order in the record relieving Donahue and he does not contend in his affidavit that such an order was entered. We have held that Rule 16 applies to Rule 37 proceedings. Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989); see Thomas v. State, 335 Ark. 262, 983 S.W.2d 122 (1998). A defendant or petitioner, however, may waive the right to appeal by his or her failure to inform counsel of the 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).

Petitioner's and attorney Donahue's claims pertaining to whether petitioner advised Donahue that she desired Donahue 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 Arnold that she desired to appeal from the August 2, 2000, order. The court need not consider whether the petitions to set aside the August 2, 2000, order had merit, only whether Donahue knew that Arnold desired to appeal and failed to act to preserve her right 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. As petitioner has declared in the motion for belated appealthat she is not indigent, she is responsible for any costs associated with the preparation of the transcript.

Remanded.

1 Petitioner Arnold also invoked Ark. Code Ann. §16-90-111 (Supp. 1995), a statute which has been superseded by Criminal Procedure Rule 37. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). .

2 Criminal Procedure Rule 37.2(e) provides that before the court acts upon a petition filed under the rule, the petition may be amended with leave of the court. Here, the record does not reflect, and petitioner Arnold does not contend, that a motion for leave to amend was filed. Under these circumstances, the amended petition was of no effect.