¶1(concurring specially).
¶2I concur in Part III of the opinion in this cause prepared by our distinguished Presiding Judge wherein the opinion of the Court sets forth the deficiencies of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and such have been further defined in opinions of this Court in Cooper v. State, 47 Ala.App. 178, 252 So.2d 104, cert. den., 47 Ala.App. 182, 252 So.2d 108; and Clark v. State, 48 Ala.App. 108, 262 So.2d 310, cert. den. 288 Ala. 736, 262 So.2d 312.
¶3I find myself, however, in disagreement with what I deem to be a necessary com*30pliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, pertaining to counsel’s obligation to the client on appeal of his conviction. In Anderswe find the following:
“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus ctiriae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His • role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
“This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.”
¶4In discussing an indigent appellant’s rights following conviction, the United States Court of Appeals for the Eighth Circuit in DeMarrias v. United States, 444 F.2d 162, at 164, stated:
“An indigent defendant is entitled to an in forma pauperis appeal and to the assistance of counsel on that appeal, unless his appeal is found to be wholly frivolous. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Williams v. United States, 402 F.2d 548 (8th Cir. 1968); Horsley v. Simpson, 400 F.2d 708 (5th Cir. 1968); 18 U.S.C. § 3006A; 28 U.S.C. § 1915.
“A defendant is entitled to due process in the court’s determination of whether his appeal is wholly frivolous. Due process requires the court, with the assistance of briefs of defense counsel setting forth any grounds arguably supporting the appeal, to make a full examination of the record before determining that the appeal is wholly frivolous. Anders v. California, supra; Horsley v. Simpson, supra.
*31“If the court finds that the appeal is frivolous, an indigent defendant is entitled to be informed that he may challenge the court’s finding, and that he may have, the assistance of counsel in doing so. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957); 18 U.S.C. § 3006A.”
¶5In discussing counsel’s role in representing an indigent appellant on appeal from his conviction in the United States District Court, the United States Court of Appeals for the Fifth Circuit in United States v. Minor, 444 F.2d 521, at 522, stated:
“Three days after the appeal was docketed in this Court, the appellant’s court-appointed trial counsel filed a motion for leave to withdraw from his appointment on the ground that the appeal was frivolous because the appellant had entered a voluntary plea of guilty. In his brief in support of his motion, counsel stated that he had conscientiously examined the record, and knew of no arguable issues which could be presented on appeal. He argued that if required to pursue the appeal the result would be ‘a form of intellectual dishonesty and gymnastics.’ This Court granted counsel’s motion, and appointed another attorney to represent the appellant, who also seeks leave to withdraw on the same grounds.
“The Court advised the appellant of his right under Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, to answer counsel’s motion and supporting brief by filing a response setting forth any points he claims are appealable. The appellant has failed to submit any such brief or reply.
“In conformity with the guidelines established by Anders, supra, we have reviewed the entire record in this case, and are impelled to agree with counsel’s characterization of the appeal as totally frivolous. Accordingly, we dismiss the appeal under Local Rule 20, and grant counsel’s motion to be relieved of his appointment. Lemus v. Government of the Canal Zone, 5th Cir. 1971, 443 F.2d 23.
“Appeal dismissed.”
¶6I find myself in accord with the authorities as hereinabove set forth, and would require as a minimum from counsel the following :
(a) Court appointed counsel should file with the appellate court a motion indicating that, in his opinion, the appeal is frivolous and requesting permission of the appellate court to withdraw from his representation of the - appellant.
(b) That copies of such motion be sent to the appellant and to the trial judge who made the appointment of counsel.
(c) That the appellant be given an opportunity to request other counsel to review the record and advance appellant’s position.
(d) Should the second counsel determine that such appeal is frivolous, in his opinion, and so advises the court, the appellant, and the trial court, then the appellant may be allowed to file such pro se brief as he may desire in order for the court to then review the record in accordance with its statutory duty under the provisions of Title 15, Section 389, Code of Alabama 1940, Recompiled 1958. See also, Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501; United States v. Fisher, 2 Cir., 442 F.2d 1018; Jackson v. Turner, 10 Cir., 442 F.2d 1303; United States ex rel. Randazzo v. Follette, 2 Cir., 444 F.2d 625; United States v. Crawford, 5 Cir., 446 F.2d 1085; United States v. Mills, 5 Cir., 446 F.2d 1397; Perry v. Texas, 5 Cir., 456 F.2d 879; United States v. King, 5 Cir., 456 F.2d 1243.