White v. State

PATTERSON, Judge.

Appellant, William Carlton White, was convicted on March 7, 1988, for the crime of murder, § 13A-6-2, Code of Alabama 1975, and was sentenced to life imprisonment.

Appellant gave timely notice of appeal, and the record of the trial was filed with the clerk of this court on August 10, 1988. The appeal was taken under submission on October 11, 1988. Appellant’s appointed counsel has not filed a brief, and the state has requested that we take the necessary steps to see that appellant is adequately represented on appeal and a brief is filed.

Our file shows that the clerk of this court notified appellant’s counsel, by letter dated September 9, 1988, of the necessity of filing a brief. Mylar v. State, 671 F.2d 1299 (11th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983).

Appellant is constitutionally entitled to effective assistance of counsel, which includes the filing of an appellate brief on first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

Accordingly, we remand this case to the trial court with instructions to hold a hearing to determine whether appellant has abandoned his appeal and, if not, whether new appellate counsel should be appointed. If the trial court determines that the presently appointed counsel should continue to represent appellant, said counsel shall file an appropriate brief with this court within 21 days from the date of the lower court’s determination. If the trial court determines that new appellate counsel should be appointed, it should appoint new appellate counsel, and the time for filing the appellant’s brief shall commence to run from the date of the appointment and briefs shall be filed in accordance with A.R.A.P. 31. If the trial court appoints new counsel, it shall order present counsel to deliver appellant’s copy of the transcript and record to the newly appointed counsel. Due return should be made to this court of the action taken.

REMANDED WITH INSTRUCTIONS.

All Judges concur.