ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

October 9, 2003

EMMITT JONES

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-491

MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF CHICOT COUNTY, NO. CR 97-18-A, HON. DON GLOVER, JUDGE]

MOTION GRANTED

Per Curiam

Emmitt Jones was found guilty by a jury of multiple felony offenses for which an aggregate sentence of 876 months' imprisonment was imposed. A fine of $50,000 was also imposed. The court of appeals affirmed. Jones v. State, CACR 98-632 (Ark. App. January 6, 1999).

Jones subsequently filed in the trial court a timely petition and amended petition pursuant to Criminal Procedure Rule 37.1 challenging the judgment. The petition was denied after an evidentiary hearing at which petitioner Jones was represented by appointed counsel, William Howard, Jr. The court denied the petition by order entered January 9, 2002.

Now before us is a motion filed by Mr. Jones seeking leave to proceed with a belated appeal of the order. Petitioner contends that he asked Mr. Howard to perfect an appeal but counsel did not do so. In an affidavit filed in response to the motion for belated appeal, counseldoes not contradict that assertion; instead, counsel avers that he investigated the allegations contained in the Rule 37.1 petition, including the claim that a certain person should have been called as a witness at trial, and concluded that the witness would not have changed the outcome of the trial. It may be assumed that counsel is contending that it would have been pointless to pursue a meritless appeal.

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. There is no order in the record relieving Howard. 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).

As petitioner states that he advised counsel of his desire to appeal, and counsel does not

contest that statement, we hold that petitioner should be permitted to proceed with a belated appeal of the order that denied his Rule 37.1 petition and amended petition. If counsel knew that petitioner desired to appeal, even if counsel believed the appeal be entirely without merit, it was his obligation to lodge the record in this court and ask to be relieved in accordance with Ark. Sup. Ct. R. 4-3(j). We have held that an attorney who desires to be relieved on the ground that an appeal is without merit must comply with the procedure set out in Anders v. California, 386 U.S. 738 (1967). Matthews v. State, 332 Ark. 661, 966 S.W.2d 888 (1998). Mr. Howard has not been relieved and thus remains attorney-of-record for the appeal. He is directed to file the appellant's brief within forty days or submit within that time a petition for writ of certiorari, ifthe record as lodged by petitioner is incomplete.

Motion granted.