Sanchez v. StateSanchez v. State
- Reporters:
- , ,
- Before:
- Zenoff
*96 OPINION
By the Court,
Zenoff, J.:Louie Sanchez appeals from a conviction of first-degree burglary. At five o’clock in the morning of November 3, 1967 he was apprehended in the basement of the Mint Hotel in Las Vegas while pushing a television set out of the hotel. Sanchez admitted the taking of the set from the hotel but claimed that a man had given him ten dollars and told him to bring his television set down from his hotel room. Sanchez had the keys to two Mint Hotel rooms on his person, one of which was to the room which contained the stolen television set.
1. Two photographic copies of lists containing the serial numbers of the television sets the hotel owned and the rooms which contained them were sought to be introduced at trial, but were objected to as not being the best evidence and not taken in the course of business. The purpose of the offer of the evidence was to show that the television set seized by Sanchez belonged in Room 1510 of the hotel. Counsels’ objection to one of the two exhibits was sustained and therefore his assignment of error as to that exhibit is unfounded. The other exhibit was a copy in daily use and contained notations of sets removed for repairs by designated maintenance employees. It shows that on the date of the theft the stolen television set was owned by and assigned to a room of the hotel to which Sanchez was found to have a key and to which he admits entering to remove the set. The only assignment of error that bears discussion is whether the exhibits offered as business records are
*97
admissible within the purview of
2. We welcome the opportunity to dispose of the question of the responsibility of counsel in what they consider to be a frivolous appeal. The public defender in this case acknowledged at the outset that he did not find any merit or reversible error in this appeal. Nevertheless he submitted a brief on all issues raised by the record which might arguably support an appeal as required by Anders v. California, 386 U.S. 738 (1967). See also United States v. Gregg, 393 F.2d 722 (4th Cir. 1968); Merkel v. Beto, 387 F.2d 854 (5th Cir. 1968); Smith v. United States, 384 F.2d 649 (8th Cir. 1967); State v. Elliott, 418 P.2d 263 (Ore. 1966), vacated and remanded, Elliott v. Oregon, 387 U.S. 571 (1967), reaff’d, State v. Elliott, 442 P.2d 609 (Ore. 1968); People v. Feggans, 432 P.2d 21 (Cal. 1967); Commonwealth v. Baker, 239 A.2d 201 (Pa. 1968).
We will remove some of the circuitous requirements of Anders, supra, in order that the litigants, counsel and this court can expeditiously get to the point of each case with a minimum of procedural steps and still afford the maximum of constitutional protection to the defendant. Appointed counsel for a defendant who demands an appeal need not file a request to *98 withdraw if he feels there is no reversible error to argue on appeal. If after a conscientious examination of the record counsel believes that the appeal is frivolous, then he must file the opening brief on the merits of all arguable issues raised by the record together with an acknowledgment that he does not believe there is merit to the appeal. Thereafter the state may either answer in normal course or move to dismiss the appeal as frivolous, but a motion to dismiss must be accompanied with points and authorities in support of the claim of frivolity.
Some cautions should be noted. Neither the district court nor counsel may decide whether the appeal is frivolous. Lane v. Brown, 372 U.S. 477 (1963); Eskridge v. Washington, 357 U.S. 214 (1958). Only this court can do that.
In this case we do not dismiss the appeal as frivolous because
Notes