IN RE AR RULES, APP. PROC. — CRIMINAL, 340 Ark. Appx. 724 (2000)

IN RE: ARKANSAS RULES of APPELLATE PROCEDURE — CRIMINAL, RULES 10 and 16; RULES of CRIMINAL PROCEDURE, RULE 37.5

Supreme Court of Arkansas
Delivered January 13, 2000

PER CURIAM.

The Supreme Court Committee on Criminal Practice has submitted three proposals for changes in the Arkansas Rules of Appellate Procedure — Criminal and the Rules of Criminal Procedure. Below, these changes are illustrated in the existing rules.

The amendment to Rule 16, Ark. R. App. P. — Crim. is to insure the prompt appointment of new appellate counsel when prior counsel is permitted to withdraw.

The amendments to Rule 10, Ark. R. App. P. — Crim., and Rule 37.5, Ark.R.Crim.P. are intended to clarify the dissolution of stays of execution in capital cases after post-conviction relief has been denied.

We agree with all of the Committee’s recommendations.

Accordingly, effective immediately, Ark. R. App. P. — Crim. 10 and 16 and Ark.R.Crim.P. 37.5 are so amended, and the rules are republished at the end of this per curiam order.

We express our gratitude to the Committee for their work.

ILLUSTRATION OF RULES CHANGESRule 16. Trial counsel’s duties with regard to appeal.

Trial counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the Supreme Court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. If court appointed counsel is permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient

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cause, new counsel shall be appointed promptly by the court exercising jurisdiction over the matter of counsel’s withdrawal.

Reporter’s Notes to 2000 Amendment: A sentence was added at the end of the rule to require the prompt appointment of substitute appellate counsel when the court permits the withdrawal of counsel.

Rule 10. Affirmance of death sentence; procedure.

When a judgment of death has been affirmed, petition underARCrP 37 has been denied, the denial of post-conviction relief has been affirmed, or a mandate has been returned from the United States Supreme Court, and the day of execution has passed, the Clerk of the Supreme Court shall transmit to the Governor a certificate of the affirmance, denial or return of mandate and judgment, to the end that a warrant for the execution of the judgment may be issued by the Governor. Such certificate shall operate to dissolve any stay of execution previously entered by the Supreme Court or by a circuit court pending disposition of a petition for post-conviction relief.

Reporter’s Notes to 2000 Amendment: The rule was clarified with regard to the dissolution of a stay of execution after the denial of post-conviction relief has been affirmed on appeal. (See Ark.R.Crim.P. 37.5 (g) (ii) for dissolution of stays of execution when there is no appeal).

Rule 37.5. Special rule for persons under sentence of death.

. . . .

(g) Effect on sentence of death. When the circuit court enters an order under subsection (b) of this rule, the court shall also enter an order staying any sentence of death. The stay of execution shall remain in effect until dissolved by a court with competent jurisdiction. The circuit court shall enter an order dissolving the stay of execution if:

(1) A timely petition is not filed under this rule; or

(2) A timely petition is filed under this rule but relief is denied by the circuit court under subsection (i) of this rule, andeither the denial of relief is affirmed on appeal or the time for filing an appeal from the denial of relief has expired without the filing of a notice of appeal.

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. . . .

Reporter’s Notes to 2000 Amendment: Subsection (g) (2) was amended to clarify the dissolution of the stay of execution when post-conviction relief has been denied and a notice of appeal has not been timely filed. (See Ark. R. App. P. — Crim. 10 for dissolution of stays of execution when the denial of post-conviction relief is affirmed on appeal.)

AMENDED RULES AS REPUBLISHEDRules of Appellate Procedure — Criminal

Rule 10. Affirmance of death sentence; procedure.

When a judgment of death has been affirmed, the denial of post-conviction relief has been affirmed, or a mandate has been returned from the United States Supreme Court, and the day of execution has passed, the Clerk of the Supreme Court shall transmit to the Governor a certificate of the affirmance or return of mandate and judgment, to the end that a warrant for the execution of the judgment may be issued by the Governor. Such certificate shall operate to dissolve any stay of execution previously entered by the Supreme Court or by a circuit court pending disposition of a petition for post-conviction relief.

Reporter’s Notes to 2000 Amendment: The rule was clarified with regard to the dissolution of a stay of execution after the denial of post-conviction relief has been affirmed on appeal. (See Ark.R.Crim.P. 37.5 (g) (ii) for dissolution of stays of execution when there is no appeal.)

Rule 16. Trial counsel’s duties with regard to appeal.

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the Supreme Court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. If court appointed counsel is permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or

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for other sufficient cause, new counsel shall be appointed promptly by the court exercising jurisdiction over the matter of counsel’s withdrawal.

Reporter’s Notes to 2000 Amendment: A sentence was added at the end of the rule to require the prompt appointment of substitute appellate counsel when the court permits the withdrawal of counsel.

Rules of Criminal Procedure

Rule 37.5. Special rule for persons under sentence of death.

. . . .

(g) Effect on sentence of death. When the circuit court enters an order under subsection (b) of this rule, the court shall also enter an order staying any sentence of death. The stay of execution shall remain in effect until dissolved by a court with competent jurisdiction. The circuit court shall enter an order dissolving the stay of execution if:

(1) A timely petition is not filed under this rule; or

(2) A timely petition is filed under this rule but relief is denied by the circuit court under subsection (i) of this rule, and the time for filing an appeal from the denial of relief has expired without the filing of a notice of appeal.

. . . .

Reporter’s Notes to 2000 Amendment: Subsection (g) (2) was amended to clarify the dissolution of the stay of execution when post-conviction relief has been denied and a notice of appeal has not been timely filed. (See Ark. R. App. P. — Crim. 10 for dissolution of stays of execution when the denial of post-conviction relief is affirmed on appeal.)

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