EN BANC

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

CACR02-668

September 18, 2002

BRYSON FOSTER AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT,

FORT SMITH DIVISION

[CR94-452-B]

V. HON. JAMES ROBERT MARSCHEWSKI,

JUDGE

STATE OF ARKANSAS MOTION GRANTED, EXCEPT FOR

APPELLEE APPOINTMENT OF COUNSEL.

APPEAL DISMISSED

Appellant Bryson Foster is properly before this court on an appeal from a revocation of a suspended sentence from Sebastian County Circuit Court, Arkansas. Appellant is indigent and an attorney was appointed at trial. Appellant requests that he be allowed to withdraw the appeal and submit an Arkansas Rules of Criminal Procedure 37.1 post-conviction relief petition at the trial court for ineffective assistance of counsel. However, appellant also requests that an attorney be appointed for the purpose of representing appellant on the Rule 37.1 petition and hearing at the trial court. Alternatively, appellant also filed a motion for stay of appeal pending his petition under Rule 37.1.

The motion to withdraw the appeal is granted. However, we are unable to appoint counsel for representing appellant in his Rule 37.1 petition at the trial court because we lackjurisdiction to do so. Rule 37.3(b) of the Arkansas Rules of Criminal Procedure enables the trial court to appoint counsel at its discretion. If the trial court fails to act on a petition under this rule, then the petitioner may seek relief from an appellate court. See Ladwig v. Davis, 340 Ark. 415, 10 S.W.3d 461 (2000) (granting mandamus after an unreasonable delay of the trial court to enter an order on a petition). It is a recognized rule of law that a circuit court does not have authority to appoint an attorney as counsel for defendant after the filing of a notice of appeal of an order denying relief under Rule 37, and that instead the appellate court has exclusive jurisdiction to relieve and appoint new counsel, O'Brien v. State, 334 Ark. 381, 974 S.W.2d 473 (1998). Thus, it is therefore axiomatic that an appellate court lacks jurisdiction to appoint counsel after dismissing the appeal and before a Rule 37 petition has been commenced in the lower court and some appealable error has been committed.

Motion granted, except for appointment of counsel. Appeal dismissed.