ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

October 9, 2003

ADAM DAVID BOREL

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-1050

MOTION FOR BELATED APPEAL [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 2002-4208, HON. WILLARD PROCTOR, JR., JUDGE]

REMANDED

Per Curiam

On April 2, 2003, judgment was entered reflecting that Adam David Borel had entered a plea of guilty to two counts of aggravated robbery and one count of criminal attempt to commit theft of property. He was sentenced by a jury to an aggregate term of 132 months' imprisonment. Borel was represented at trial by his retained attorney, Harold L. King. No appeal was taken from the sentencing judgment, and Borel now seeks to proceed with a belated appeal 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 Borel contends that he desired to appeal the sentence but was advised by King that no appeal could be taken even though the court had informed him that the sentence could be appealed.

There is no order in the record relieving King as counsel in this case. Rule 16 of the Rulesof 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 under Rule 2(a)(1) of the Rules of Appellate Procedure-Criminal. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997; Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).

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 Mr. King was informed by petitioner Borel 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.