ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 10, 2001

DENNIS BURNETTE

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-287

PRO SE MOTIONS FOR BELATED APPEAL OF JUDGMENT AND FOR RELEASE ON BOND [CIRCUIT COURT OF MILLER COUNTY, NO. CR 99-448-1, HON. JOE GRIFFIN, JUDGE]

MOTION FOR BELATED APPEAL TREATED AS MOTION FOR RULE ON CLERK AND GRANTED; MOTION AND AMENDED MOTION FOR RELEASE ON BOND DENIED

On May 15, 2000, judgment was entered reflecting that Dennis Burnette had been found guilty by a jury of aggravated robbery and sentenced to 168 months' imprisonment. Burnette was represented at trial by his retained attorney, Don Gillaspie. Mr. Gillaspie filed a motion for new trial which was denied on June 6, 2000. Gillaspie subsequently filed a timely notice of appeal on June 29, 2000. The appeal was not perfected, and Burnette now seeks to proceed with a belated appeal of the judgment. As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk to lodge the appeal rather than a motion for belated appeal. See Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 ( 2000); see also Muhammed v. State, 330 Ark. 759, 957 S.W.2d 692 (1997).

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. Gillaspie filed a notice of appeal and was thus obligated to represent appellant Burnette until such time as he was permitted by the appellate court to withdraw pursuant to Ark. Sup. Ct. R. 4-3(j)(1). Gillaspie did not act to protect appellant's right to appeal, and thus appellant was left without the effective appellate representation guaranteed to a convicted criminal defendant by the Sixth Amendment. See Pennsylvania v. Finley, 481 U.S. 551 (1987). The direct appeal of a conviction is a matter of right, and a State cannot penalize a criminal defendant by declining to consider his or her first appeal when counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985). It is well settled that under no circumstances may an attorney who has not been relieved by the court abandon an appeal. Johnson, supra; Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000); Ragsdale v. State, 341 Ark. 744, 19 S.W.3d 622 (2000); Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997); Muhammad, supra; James v. State, 329 Ark. 58, 945 S.W.2d 941 (1997); Jackson v. State, 325 Ark. 27, 923 S.W.2d 280 (1996).

Petitioner Burnette has appended to the motion for belated appeal an affidavit asserting his indigency. As the State has not contested that assertion, he will be permitted to proceed in forma pauperis on appeal. Mr. Gillaspie remains attorney-of-record and is appointed to represent the appellant. Our clerk will lodge the partial record which was filed with the motion for belated appeal, and counsel is directed to file within thirty days a petition for writ of certiorari to bring up the remainder of the record, or that portion of it, necessary for the appeal.

A copy of this opinion shall be forwarded to the Arkansas Supreme Court Committee on

Professional Conduct.

Appellant filed a pro se motion and amended motion for release on bond with his motion to proceed with the appeal. The motion and amended motion are denied. Rule 6(b)(3) of the Rules of Appellate Procedure-Criminal provides that persons found guilty of aggravated robbery and sentenced to a term of imprisonment shall not be eligible for release on appeal bond.

Motion for belated appeal treated as motion for rule on clerk and granted; motion and amended motion for release on bond denied.