dissenting.
I must dissent in this case from any disposition of Price’s contentions on the merits. Price did not file a timely notice of appeal from the judgment and sentence. We previously have held that an appeal in a criminal case must be dismissed if the notice of appeal is not filed in accordance with Rule 1.02, W.R.A.P. Murry v. State, Wyo., 631 P.2d 26 (1981).
*333The district court had no jurisdiction to enter an order transferring Price to the state penitentiary from the state hospital. That matter is committed to the executive branch of government once the judgment and sentence has been entered. In any event, such an order is not a judgment or final order within the definition of Rule 1.05, W.R.A.P. Consequently, the jurisdiction of this court is not invoked by an appeal from that order.
The only other possibility is to recognize an appeal from the original judgment and sentence. In Murry v. State, supra, we refused to do that. I am not persuaded by the information available to the court that Price has demonstrated any right to relief pursuant to Evitts v. Lucey, — U.S. —, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). In Wright v. State, Wyo., 707 P.2d 153 (1985), we held that we do not review sentences on appeal which are permitted under the appropriate statute because there is no abuse of discretion by the sentencing court. Holmes v. State, Wyo., 715 P.2d 196 (1986). Consequently, I am unable to discern any ineffective assistance of counsel in failing to appeal from a judgment and sentence entered upon Price’s plea of guilty. A petition for certiorari should not be granted under the facts of this case. Price’s remedy, if he has one, is to seek reduction or correction of sentence pursuant to Rule 36, W.R.Cr.P. Alternatively he could pursue the post-conviction relief provided by § 7-14-101, et seq., W.S.1977.
I would dismiss this appeal because there is no jurisdiction vested in this court.
GUTHRIE, Justice, Retired,dissenting.
I dissent. It is my opinion that the order reinstating this appeal was improvidently entered1 and that this Court has no jurisdiction of this matter.
I am puzzled by the majority who use a vagrant statement from the case of Evitts v. Lucey, — U.S. —, 105 S.Ct. 830, 83 L.Ed.2d 821, reh. denied — U.S. —, 105 S.Ct. 1783, 84 L.Ed.2d 841 (1985), to justify the Court’s jurisdiction. Critical analysis of this case reveals many distinguishing facts which set it apart from the instant one.
First, the judgment from which Lucey appealed was entered after a trial and a jury verdict. An attempt to appeal this judgment was timely initiated by his counsel but was dismissed because of the error or inadvertence of that counsel. This is in sharp contrast to the factual situation of defendant Price who freely entered a guilty plea. Neither he nor his attorney found any grounds for objecting, nor was this judgment attacked until sometime after the notice of appeal should have been filed and Price became unhappy with the application of the judgment.
Secondly, there was an unchallenged finding that Lucey “received ineffective assistance of counsel on appeal.” Evitts v. Lucey, supra, 105 S.Ct. at 833. I found no suggestion or contention that this defendant has received such ineffective assistance of counsel except mayhap in the minds of the majority.
It may well have been unnecessary for me to set out anything else but Justice Brennan’s statement of the issue he decided in Evitts v. Lucey, supra, 105 S.Ct. at 833, and which certainly limits its scope and application when he said, “Rather the issue we must decide is whether the Commonwealth’s dismissal of the appeal, despite the ineffective assistance of respondent’s counsel on appeal, violates the Due Process Clause of the Fourteenth Amendment.” (Emphasis added.)
I have some concern that one who reads the opinion of the majority may infer that any attorney appearing for a client who enters a guilty plea must nevertheless prosecute an appeal, whether frivolous or not, or he will be charged with having given ineffective representation to his client. Or are we to assume that hereafter the majority will grant a “first appeal as of right” to any inmate who is presently confined pursuant to a plea of guilty without *334regard to time limitations or appellate rules once thought to be jurisdictional.
. This writer did not participate in the decision to reinstate this appeal.