2016 ARK 366 - Davis v. State

                                    Cite as

2016 Ark. 366



                 SUPREME COURT OF ARKANSAS
                                       No.   CR-16-857

                                                  Opinion Delivered: October   27, 2016
BILLY DAVIS JR.
                                APPELLANT

V.                                                MOTION FOR BELATED APPEAL
                                                  AND PETITION FOR WRIT OF
STATE OF ARKANSAS                                 CERTIORARI
                                   APPELLEE




                                                  MOTION FOR BELATED APPEAL
                                                  GRANTED; PETITION FOR WRIT
                                                  OF CERTIORARI TO COMPLETE
                                                  AND LODGE THE RECORD
                                                  WITHIN NINETY DAYS GRANTED

                                         PER CURIAM


        On March 1, 2016, a jury found Billy Davis Jr. guilty of aggravated robbery, first-

 degree battery, and theft of property. A sentencing order was entered on March 2, 2016.

 There is nothing in the record to reflect that trial counsel was relieved. Counsel denies that

 appellant timely informed him that he desired to appeal; instead, Davis belatedly filed a pro

 se notice of appeal and affidavit of indigency on May 2, 2016. Now before us is counsel’s

 motion for belated appeal in which he also seeks a writ of certiorari to bring up the record

 and proceed with the appeal.

        Arkansas Rule of Appellate Procedure–Criminal 16 (2015) 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
                                    Cite as

2016 Ark. 366


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 allowed for filing a notice of appeal under

Arkansas Rule of Appellate Procedure–Criminal 2(a)(4). Sanders v. State,

330 Ark. 851

956 S.W.2d 868

 (1997) (per curiam); Jones v. State,

294 Ark. 659

748 S.W.2d 117

 (1988) (per

curiam). It is clear that, regardless of whether Davis timely informed his counsel, he does,

in fact, desire to appeal. He is entitled to a direct appeal of his conviction as a matter of

right. Evans v. State,

356 Ark. 366

151 S.W.3d 314

 (2004) (per curiam) (citing Douglas v.

California,

372 U.S. 353

 (1963)).

       We grant the motion for belated appeal. Although Davis’s notice of appeal indicates

that the complete transcript of the proceedings was ordered, only the partial record has been

tendered to this court. Our clerk is directed to lodge the partial record. We issue the writ

of certiorari to complete the record and have the entire record lodged within ninety days of

this order. When the supplemental record is received, we direct the clerk to set an

appropriate briefing schedule for the matter.

       Motion for belated appeal granted; writ of certiorari to complete and lodge the record

within ninety days granted.