Opinion
CR 94-595
Opinion delivered July 18, 1994
1. APPEAL ERROR — MOTION FOR RULE ON THE CLERK — NEWLY APPOINTED ATTORNEY PERMITTED TO RECORD IN CRIMINAL CASE WHERE PRIOR ATTORNEY FAILED TO DO SO. — Newly appointed attorney for appellant was permitted to file record for appellant where trial counsel, who filed notice of appeal and a motion to extend time, failed to do so. 2. ATTORNEY CLIENT — WHERE TRIAL COUNSEL FAILED TO SEEK TO WITHDRAW AND FAILED TO FILE THE RECORD, COUNSEL WAS SUMMONED TO SHOW CAUSE WHY HE SHOULD BE HELD IN CONTEMPT. — Where appellant was convicted and sentenced to ten years and his trial counsel filed a notice of appeal and a motion to extend the time to lodge a record, but failed to timely file the record in appellant's case, he was summoned to show cause why he should not be held in contempt.
Motion for Rule on the Clerk; granted.
Bart E. Ziegenhorn, for appellant.
No response.
Robert Lee Jones was convicted and sentenced to ten years. His attorney at trial, Davis Loftin, filed a notice of appeal and later a motion to extend the time to lodge a record. The extension was apparently granted. Loftin was a public defender at this time, as was Tom Montgomery. Montgomery stated that, when Loftin left the public defender's office, Loftin agreed to continue his assigned cases on appeal, but Loftin failed to take further appellate action on Jones' appeal.
Although Loftin never moved to withdraw as Jones' counsel, Bart E. Ziegenhorn was appointed counsel for Jones, who was determined indigent. Ziegenhorn now files a motion for rule on the clerk requesting that he be allowed to lodge Jones' record and pursue his appeal because Loftin had failed to meet his responsibility in this respect.
[1, 2] We grant Jones' motion, but we further set a hearing date on Monday, September 12, 1994, at 9:00 a.m., and direct Davis Loftin to appear and show cause why he should not be held in contempt for failing to file a record, brief or other appropriate motions in this cause.