Stewart v. State

199 S.W.3d 78, 359 Ark. 528, 2004 Ark. LEXIS 754

• Court: Supreme Court of Arkansas
• Decided: December 2, 2004
• Docket: CR 04-1199
• Status: Published

Opinion

Per Curiam.

Appellant Gary Lee Stewart, by and through his attorney Clint Miller, Deputy Public Defender, has filed a motion for belated appeal. The motion reflects that Appellant was convicted in the Pulaski County Circuit Court of one count of possession of a controlled substance, two counts of first-degree terroristic threatening, and one count of carrying a weapon. The judgment and commitment orders were entered on September 7, 2004.

During the proceedings below, Appellant was represented by Deputy Public Defender Lance Sullenberger. Mr. Sullenberger did not file a notice of appeal on Appellant’s behalf. The motion now before us reflects that there is a dispute as to whether Appellant informed Mr. Sullenberger that he wanted to appeal his convictions. Appellant thus asks us to remand this matter to the trial court to settle the record.

Pursuant to our holdings in Kuelper v. State, 355 Ark. 539, 140 S.W.3d 464 (2004) (per curiam), and Venis v. State, 350 Ark. 110, 84 S.W.3d 867 (2002) (per curiam), we remand this matter to the trial court to determine whether Appellant actually requested his trial attorney, Mr. Sullenberger, to file a notice of appeal on his behalf. However, because both Mr. Sullenberger and Mr. Miller work for the Pulaski County Public Defender, it is not necessary for the trial court to settle the record as to which attorney is the attorney of record on appeal. We grant the parties thirty days from the date of this per curiam order to settle this issue. Once we receive the trial court’s findings, we will then take up the motion for belated appeal.

It is so ordered.