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IN THE SUPREME COURT OF MISSISSIPPI NO. 92-KP-01012-SCT JOE STEWART v. STATE OF MISSISSIPPI THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: 09/04/92 HON. LEE J. HOWARD LOWNDES COUNTY CIRCUIT COURT PRO SE OFFICE OF THE ATTORNEY GENERAL BY: PAT FLYNN FORREST ALLGOOD CRIMINAL - POST CONVICTION RELIEF AFFIRMED - 2/13/97

DISTRICT ATTORNEY NATURE OF THE CASE: DISPOSITION: MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE SULLIVAN, P.J., MCRAE AND ROBERTS, JJ. SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

Joe Stewart was convicted of sale of cocaine on May 18, 1990 in the Lowndes County Circuit Court. Judge Lee J. Howard sentenced him to serve a term of sixteen years in the Mississippi Department of Corrections, to run concurrently with a previous five-year sentence for receiving stolen property. Stewart and his attorney, Richard Burdine, had agreed only that Burdine would represent Stewart at the trial. They had made no agreement regarding representation on appeal, but at the end of his trial, Stewart asked Burdine to appeal the conviction. Burdine told him that he would not represent him any further and advised Stewart to get another attorney. Burdine never filed a motion with the court to withdraw from representation of Stewart, and he failed to file a motion to appeal Stewart's conviction and sentence within the thirty-day time limit. Stewart filed his motion for an out-of-time appeal on February 4, 1992. Judge Howard conducted a

hearing on the petition on August 25, 1992. Stewart did not testify himself and presented no witnesses other than Burdine. Based upon the testimony presented at the hearing and the transcript from the sentencing hearing, Judge Howard issued an order on September 4, 1992, denying Stewart's petition for an out-of-time appeal for failure to meet his burden of proof. Stewart appeals to this Court from the order denying him an out-of-time appeal. I. WHETHER TRIAL COURT ERRED IN FAILING TO GRANT OUT-OF-TIME APPEAL WHERE STATE DID NOT SHOW APPELLANT HAD WAIVED RIGHT TO DIRECT APPEAL AND WHERE APPEAL WAS DENIED THROUGH NO FAULT OF APPELLANT'S. Stewart first asserts that he should have been granted an out-of-time appeal, because he never waived his right to an appeal and was not at fault for the lapse of time for filing his appeal. In order to satisfy his burden of proof, Stewart was required to prove by a preponderance of the evidence at his petition hearing that he had informed his attorney that he wished to appeal and that through no fault of his own, the attorney failed to perfect an appeal. Minnifield v. State, 585 So.2d 723, 724 (Miss. 1991). The circuit court determined that Stewart had failed to meet this burden of proof. The testimony at the hearing was undisputed that Stewart informed his attorney, Richard Burdine, that he wished to appeal. However, Burdine and Stewart had made no agreement regarding representation on appeal, and Burdine instructed Stewart at the end of the trial that he would not represent him on appeal. Despite Burdine's advice, Stewart never obtained another attorney and waited until February of 1992 to file his petition for out-of-time appeal, approximately nineteen months after his deadline to file an appeal in June of 1990. Clearly, Stewart was at least partially at fault for failing to meet his deadline to file his appeal. Stewart points to this Court's decision in Wright v. State, 577 So.2d 387, 390 (Miss. 1991) in support of his argument. In Wright, this Court urged trial courts to inform defendants of their right to appeal at the sentencing hearing. Id. This Court also determined that it was not contradictory for Wright to argue both that he asked his attorney to appeal and that he was not informed of his right to an appeal, because knowing that it is possible to appeal is not the same as knowing that the right to appeal exists. Id. at 389-90. Here, the record reflects that the trial court did not inform Stewart of his right to appeal at his sentencing hearing, but Stewart makes no assertion that he was ever unaware of that right. Having been previously convicted, in fact, Stewart should have been aware of his right to appeal. Furthermore, in Wright, this Court merely remanded the case for an evidentiary hearing based upon Wright's attorney's failure to perfect an appeal at Wright's request. In this case, Stewart was allowed a hearing on his petition for out-of-time appeal; the trial court merely ruled against him. Based upon these distinctions, Wright lends no support to Stewart's argument. This Court has previously held that withdrawal of counsel may only be accomplished by filing a motion with the court, proper notice to the client, and entry of a written order by the court granting the withdrawal. Myers v. Mississippi State Bar, 480 So.2d 1080, 1091-93 (Miss. 1985). Burdine did not effectively withdraw from his representation of Stewart, because he failed to file a motion with the court and receive a written order from the court allowing him to withdraw. However, even if Burdine was at fault for this omission, it cannot be said that Stewart was without blame. Stewart

should have taken steps either to obtain a new attorney or proceed pro se after Burdine informed Stewart that he would not represent him on appeal. Stewart failed to meet his burden of proof, and the trial court did not err in refusing to grant him an out-of-time appeal. II. WHETHER APPELLANT WAS SUBJECTED TO A DENIAL OF DUE PROCESS OF LAW UNDER THE 5TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 3,

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