PROVO CITY v. STACY, 2000 UT App 337

Case No. 991032-CA.Utah Court of Appeals.
Filed November 30, 2000. (Not For Official Publication)

Appeal from the Fourth District, Provo Department, The Honorable Donald J. Eyre.

Dana M. Facemyer, Provo, for Appellant.

Vernon F. Romney, Provo, for Appellee.

Before Judges Greenwood, Orme, and Thorne.

MEMORANDUM DECISION
PER CURIAM:

Defendant’s appellate counsel filed a memorandum on October 20, 2000 requesting permission to withdraw. Counsel represented that after review of the record, he found no issues warranting appeal. However, even if counsel believes the issues on appeal are entirely without merit, he cannot be relieved of his obligation to assist his client simply by filing a memorandum. Instead, counsel must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and State v. Clayton, 639 P.2d 168, 169-70 (Utah 1981).

As we emphasized recently in State v. Wells, 2000 UT App 304, ¶ 7,Anders and Clayton require that an attorney’s request to withdraw “must be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Before filing the brief, counsel must furnish the brief to the client, and the client must be afforded time to raise additional issues. Id. at ¶¶ 7,9. If the client raises further issues, the attorney must brief those issues in the opening brief or in a supplemental brief. Id. at ¶ 10. In this case, the certificate of service filed with counsel’s memorandum does not indicate that the memorandum was even served on defendant.[1] The memorandum itself does not comply substantively or procedurally with Anders or the Utah cases following it, nor does it constitute, or substitute for, a brief complying with rule 24 of the Utah Rules of Appellate Procedure.

Accordingly, the memorandum filed October 20, 2000 is stricken. Counsel is ordered to file, in accordance with the Utah Rules of Appellate Procedure, either a regular brief or a brief complying fully with the requirements of Anders, Clayton, and Wells within 40 days of the date of this order. Alternatively, the parties may stipulate to dismiss the appeal in accordance with rule 37(b). We note that appellant’s brief was originally due on June 9, 2000 and we have granted several extensions of time to allow counsel to file his brief. Counsel should expect that no further extensions will be granted. Moreover, any failure to comply with this directive will be treated as contempt of court.

Pamela T. Greenwood, Presiding Judge, Norman H. Jackson, Associate Presiding Judge, Gregory K. Orme, Judge.