Wormley v. State

289 S.W.3d 463, 375 Ark. 247, 2008 Ark. LEXIS 720

• Court: Supreme Court of Arkansas
• Decided: December 11, 2008
• Docket: CR 08-1344
• Status: Published

Opinion

Per Curiam.

Shelton Wormley, by counsel, John L. Kear-ney, has filed this motion for rule on clerk. The circuit court’s judgment and commitment order was entered on May 29, 2008, and the attorney for Wormley, Donald E. Warren, Sr., filed a notice of appeal on June 12, 2008. The trial court granted a motion filed by Mr. Warren to substitute John L. Kearney as counsel for appellant on July 16, 2008. The record in this matter was due to be filed by September 11, 2008. Because the record was not tendered to this court until November 17, 2008, it is untimely.

We are unable to consider the motion for rule on clerk filed by Mr. Kearney at this time. Under Arkansas Rule of Appellate Procedure-Criminal 16(a), once the notice of appeal has been filed, the appellate court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. Thus, because Mr. Warren filed the notice of appeal on June 12, 2008, the trial court lacked jurisdiction to relieve him and substitute Mr. Kearney as counsel for appellant. Consequently, because Mr. Kearney was never properly appointed as counsel, he does not represent appellant, and this court will not consider a motion for rule on clerk filed by him.

Because Mr. Warren has not been relieved as counsel of record, we direct him to file a motion for rule on clerk on Wormley’s behalf within thirty days. At that time, Mr. Warren may file a motion to withdraw as counsel, and Mr. Kearney, should he wish to represent Wormley on appeal, may file a motion with this court for appointment of counsel.

Motion for rule on clerk denied.