Opinion
1 Div. 580.
February 18, 1988.
Appeal from the Circuit Court, Baldwin County; Harry J. Wilters, Jr., Judge.
James Powell, Daphne, for appellant.
E.E. Ball, Bay Minette, for appellee.
Appellant, Richard Alvoid Boutwell, was convicted for the offense of disorderly conduct, sentenced to 90 days' imprisonment in the county jail, and ordered to pay a $500 fine and costs. Appellant's retained attorney gave timely notice of appeal, and appellant's brief was due to be filed with this court no later than November 3, 1987. On November 16, 1987, having received no brief from appellant, the clerk of this court notified appellant's attorney by letter that a brief had not been filed and called counsel's attention to Mylar v. Alabama, 671 F.2d 1299 (11th Cir. 1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983), which holds that "the failure to file a brief in a nonfrivolous appeal falls below the standard of competence expected and required of counsel in criminal cases and, therefore, constitutes ineffective assistance." See Cannon v. Berry, 727 F.2d 1020 (11th Cir. 1984). No appellate brief has been filed as of the date of this opinion.
We, therefore, deem it necessary to dismiss this appeal, and do so under the authority of A.R.A.P. 2(a)(2)(A) and (C), because of appellant's failure to file a brief within the time provided by A.R.A.P. 31 and his failure to prosecute the appeal.
If appellant is without fault in failing to file the brief or to prosecute the appeal, he may consider an application for post conviction relief under A.R.Crim.P.Temp. 20.
This appeal is due to be, and it is hereby, dismissed.
DISMISSED.
All Judges concur.