dissenting. In my opinion, the appellant has received a complete run-around at all stages of the proceedings in this matter. He has been denied a direct appeal or a belated appeal and he has been denied a Rule 37 hearing. In order to get the events in order I will set them out chronologically below:
12-30-75 Information filed
2-12-76 Tried and convicted
2-26-76 Notice of appeal filed
3-1-76 Attorney wrote appellant about appeal
5-7-76 Rule 1 Petition verified and mailed (Not filed until August 4, 1976)
6-10-76 Appellant wrote court requesting transcript and ruling on his Rule 1 Petition (Not filed until August 4, 1976)
8-4-76 Hearing set on Rule 1 for 8-20-76
8-9-76 Appellant’s attorney requested to be relieved
8-24-76 Amendment to Rule 1 Petition filed
9-3-76 Appellant moved to withdraw Rule 1 Petition
9-8-76 Letter from appellant to clerk
9-20-76 Letter from clerk to appellant stating the warrant was not filed in her office
1-26-78 Appellant requested status report on Rule 1 or 37
6-22-78 Appellant requested cost of transcript
8-20-78 Appellant wrote for commitment papers
12-26-78 Petition to obtain transcript at public expense
1-4-79 Letter from court to reporter re transcript
1-8-79 Reporter states record unavailable
3-14-79 State demands proof of indigency
7-5-79 Order for a hearing on July 9, 1979
2-11-80 Motion to reconstruct original transcript
11-3-80 Filed amendment to petition under Rule 37.1
11-3-80 Hearing on above petition was denied
12-5-80 Notice of appeal and designation of record
From the above-listed events it can easily be determined that the notice of appeal filed on February 26,1976, has never been acted upon. The attorney does not have a withdrawal authority in the record. Therefore, the appeal is technically still pending.
We have firmly established that the filing of a notice of appeal in apt time is not a prerequisite to jurisdiction by the supreme court in criminal cases. Goodwin v. State, 261 Ark. 926, 552 S.W. 2d 233 (1977). In the case of Harkness v. State, 264 Ark. 561, 572 S.W. 2d 835 (1978), we stated that when an attorney miscalculated the time for filing the appeal, it amounted to a denial of the appellant’s constitutional rights and would not be grounds for refusing a rule on the clerk.
Even though the trial judge may no longer have authority to accept an appeal or appoint counsel for an accused, because the time for appeal has run, there is still a remedy for the appellant. Rules of Criminal Procedure, Rule 36.9, provides, among other things, that the supreme court may act upon and decide a case in which notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. This is true even though no request for belated appeal has been made. Finnie v. State, 265 Ark. 941, 582 S.W. 2d 19 (1979). TheFinnie case also sets out the requirements the attorney must follow in order to withdraw from a case after trial.
It is clear from the Rules of Criminal Procedure and from our case law that this court has the authority to grant the relief sought in this case. Therefore, I would grant a belated appeal since the initial notice of appeal was never acted upon and the appellant was in no position to follow through with it. In any event, it is quite clear that he withdrew his original Rule 1 Petition with the understanding that he was going to get a belated appeal and/or his attorney would file an amended petition. According to the testimony at the hearing on December 5, 1980, a Rule 37 Petition was filed in 1978,-This would, no doubt, account for the amendment to the Rule 37 Petition being filed on November 3, 1980. Any way I look at this case I find the appellant was denied due process of law.
Hays, J., concurs.