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WYMAN SCOTT v. FRED JACOBS (08/04/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 4, 1983.

WYMAN SCOTT, PETITIONER
v.
FRED JACOBS, CHAIRMAN, PENNSYLVANIA BOARD OF PROBATION AND PAROLE ET AL., RESPONDENTS

Original jurisdiction in the case of Wyman Scott v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Timothy P. Wile, Assistant Public Defender, for petitioner.

Robert Greevy, Chief Counsel, for respondents.

Judges Rogers, Craig and MacPhail, sitting as a panel of three.

Author: Per Curiam

[ 76 Pa. Commw. Page 100]

Counsel appointed to represent the Petitioner*fn1 in this case has filed a petition for leave of court to withdraw his appearance because counsel has determined

[ 76 Pa. Commw. Page 101]

    that Petitioner's appeal is frivolous. Counsel has furnished us with an "Anders" brief.*fn2

In Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) our Supreme Court mandated that before a request to withdraw may be considered, counsel must: 1) notify the client of his request to withdraw, 2) furnish the client with a copy of his Anders brief, and 3) advise his client of his right to retain new counsel or raise any points he may deem worthy of consideration in a pro se brief.

The record before us does not indicate that a copy of counsel's petition to withdraw was served upon his client nor is there any evidence that he advised his client of the right to retain new counsel or raise any point the client may deem worthy in a pro se brief.

Under these circumstances, we must deny counsel's petition without prejudice to his right to resubmit his petition after he has complied with the requirements of McClendon or, in the alternative, counsel may submit an advocate's brief. Commonwealth v. Walker, Pa. Superior Ct. , 457 A.2d 571 (1983).

Per Curiam Order

The petition of Timothy P. Wile, Esquire to withdraw as counsel is denied without prejudice to resubmit in a manner consistent with the foregoing opinion. Jurisdiction retained.

Disposition

Denied without prejudice.


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