McRoy v. State

545 So. 2d 122, 1988 Ala. Crim. App. LEXIS 60, 1988 WL 33194

Opinions

TAYLOR, Judge.

Billy O’Neal McRoy was convicted of driving under the influence (DUI), in contravention of § 32-5A-191, Code of Alabama 1975, as amended, upon his plea of guilty. He was fined $2,000 and sentenced to 120 days in the county jail. No appellate brief was filed by his attorney. This court sends a standard form letter to notify counsel that no brief has been received from him or her. Failure to file an appellate brief has been held to be ineffective assistance of counsel in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

Rule 24(b)(1), Alabama Rules of Appellate Procedure, provides that “appointed counsel shall continue as defendant’s counsel unless relieved by order of the trial court.” (Emphasis ours.) See, Oliver v. State, 435 So.2d 207 (Ala.Cr.App.1983).

This case is remanded to the circuit court for that court to determine whether the accused has abandoned his appeal and whether he is an indigent entitled to appointed counsel. If he has not abandoned his appeal, the circuit court shall give him a reasonable time to retain another attorney, or, if he is entitled to appointed counsel, then the circuit court shall appoint new counsel.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

It appearing on return to remand that the appellant herein has abandoned his appeal, it is hereby dismissed.

OPINION EXTENDED; APPEAL DISMISSED.

All the Judges concur.