527 So. 2d 790 | Ala. Crim. App. | 1988
This is an appeal from the denial, after an evidentiary hearing, of a petition for post-conviction relief pursuant to A.R.Crim.P.Temp. 20.
It appears from the record before us that appellant, Robert Lee Hulsey, was indicted on November 28, 1983, for the offenses of attempted rape in the first degree and rape in the first degree; that after a jury trial on September 18, 1985, he was acquitted of the attempted rape charge and convicted of the first degree rape charge; and that he was sentenced on December 16, 1985, to 30 years in the penitentiary. After the sentencing, appellant terminated the services of his trial counsel and retained another attorney, who filed a motion for a new trial and represented appellant at the hearing on said motion. However, this hearing and the ruling thereon came too late, since the motion had already been automatically denied by operation of A.R.Crim.P.Temp. 13(d). Thereafter, appellant's counsel filed a notice of appeal, but we dismissed the appeal because the notice was untimely.
Appellant contends, inter alia, in his petition that he received ineffective assistance of counsel because his attorneys failed to file timely notice of appeal, causing a foreclosure of his right of appellate review. We agree.
It is beyond question that an accused has the right to effective assistance of counsel on direct appeal. Evitts v.Lucy,
For the above reasons, we grant appellant an out of time appeal.1 The order of this court dated June 13, 1986, dismissing Hulsey's appeal is hereby set aside. It is further ordered that the time for filing briefs shall begin to run from the date of the certificate of completion of the record on appeal. A.R.A.P. 31.
The judgment of the trial court in this post-conviction proceeding is reversed, and appellant is granted an out of time appeal.
JUDGMENT REVERSED; OUT OF TIME APPEAL GRANTED.
All Judges concur.