Winston v. State
Annotate this Case
Download PDF
Cite as 2009 Ark. 438
ARKANSAS SUPREME COURT
No.
CR 09-374
Opinion Delivered
TYWAN WINSTON
Appellant
v.
September 24, 2009
APPELLANT’S PRO SE MOTION FOR
PERMISSION TO FILE PRO SE BRIEF
AND APPELLEE’S MOTION FOR
STAY OF BRIEF TIME [CIRCUIT
COURT OF PULASKI COUNTY, CR
2006-3399, HON. WILLARD
PROCTOR, JR., JUDGE]
STATE OF ARKANSAS
Appellee
APPELLANT’S MOTION DENIED;
APPELLEE’S MOTION GRANTED.
PER CURIAM
In 2007, a jury found appellant Tywan Winston guilty of capital murder and sentenced him
to life imprisonment without parole. This court affirmed the judgment. Winston v. State, 372 Ark.
19, 269 S.W.3d 809 (2007). Appellant timely filed in the trial court a pro se notice of appeal of an
order denying postconviction relief. The appeal was lodged in this court, with our docket reflecting
that appellant is represented by counsel, Mr. Mark Alan Jesse. Mr. Jesse filed appellant’s brief.
Appellant later tendered a pro se brief that was returned to him,1 and he has now filed this motion
in which he requests permission to file a pro se brief.
This court will not permit an appellant to compete with his attorney to be heard in an appeal.
Brewer v. State, 371 Ark. 532, 268 S.W.3d 332 (2007) (per curiam). If appellant is represented by
counsel, he may not submit his own brief in competition with his attorney’s. Appellant contends
1
Appellant’s pro se brief was returned and not held because it was not signed by appellant.
Cite as 2009 Ark. 438
that he terminated his representation by Mr. Jesse, and that the brief that Mr. Jesse filed was
submitted without his consent. The record, however, indicates that Mr. Jesse was attorney-of-record
below and does not reflect that Mr. Jesse was relieved as counsel.
Under Arkansas Rule of Appellate Procedure–Criminal 16(a), once an attorney represents
a defendant in a criminal matter, the attorney is obligated to continue representing the defendant
until relieved by the appropriate court. Wann v. State, 369 Ark. 426, 255 S.W.3d 473 (2007) (per
curiam). Under no circumstances may an attorney who has not been relieved by the court abandon
an appeal. Id. Further, counsel representing a client whose petition under Arkansas Rule of
Criminal Procedure 37.1 is denied must continue to represent that client on appeal until relieved.
Ark. R. Crim. P. 37.3(b). Mr. Jesse was clearly still obligated to represent appellant when
appellant’s brief was filed.
We do not treat appellant’s motion as one to relieve Mr. Jesse so that he may file a pro se
brief because he has not submitted an appropriate affidavit. See Ark. Sup. Ct. R. 4-1(c). Nor do we
treat the motion as one to supplement the brief because appellant does not allege that the brief is in
any particular way deficient; he only avers that his own brief has merit. An appellant is not
permitted to supplement a brief filed by counsel unless he clearly shows that counsel’s brief is
lacking. Gidron v. State, 312 Ark. 517, 850 S.W.2d 331 (1993) (per curiam) (citing Wade v. State,
288 Ark. 94, 702 S.W.2d 28 (1986) (per curiam)). Accordingly, we deny the motion.
Appellee State, in addition to its response, has filed a motion that requests an extension of
fifteen days in which to file its own brief addressing the issues in the brief filed by counsel. We
grant the motion. Appellee’s brief is due here no later than fifteen days from the date of this
-2-
Cite as 2009 Ark. 438
opinion.
Appellant’s motion denied; appellee’s motion granted.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
