Thompson v. State ( 1991 )

TYSON, Judge.

In the Circuit Court of Etowah County, the appellant was convicted of robbery in the first degree and assault in the second degree by a jury. He was sentenced to 40 years’ imprisonment on the robbery conviction and to 10 years’ imprisonment on the assault conviction, with the sentences to run concurrently. The trial court ordered the appellant to pay restitution in the amount of $115, court costs, and $50 to the Victims’ Compensation Fund.

On February 20, 1991, and May 10, 1991, the trial judge entered orders stating that the appellant was indigent and without funds to pay for a transcript or for counsel for his appeal. The trial court appointed the Honorable Walden H. Buttram to represent the appellant on appeal. On May 28, 1991, Mr. Buttram filed a motion asking this court to allow him to withdraw from this case because the appellant’s father had retained other counsel to represent the appellant on appeal. This motion was granted on May 30, 1991.

To date, no brief has been filed with this court on behalf of the appellant. The attorney general, citing Burks v. State, 522 So.2d 796 (Ala.Crim.App.1988), has moved to dismiss this appeal for failure to file a brief. In Burks, the appeal was dismissed because Burks had failed to file a brief with this court and because there was no indication in the record that Burks was indigent. Here, however, the trial court found in his orders of February 20 and May 10 that the appellant was indigent and was unable to pay for the costs of an appeal.

Thus, the submission is hereby set aside and the cause is remanded to the circuit court for that court to conduct a hearing to determine if the appellant is, in fact, represented by retained counsel. If the appellant has not retained counsel, the circuit court shall appoint new counsel to represent the appellant and shall direct counsel to file a brief with this court in a timely manner. The circuit court shall make due return to this court within 30 days of this opinion.

REMANDED WITH DIRECTIONS.

All the Judges concur.