Memorandum

To:	Presiding Judge A. W. Birdsong, Jr.
From:	William L. Martin, III
Subject:	A97A2247 . Herndon v. The State
Date:	December 18, 1997

In a recent opinion (copy attached) issued by your office in Division 12, regarding raising the issue of inadequacy of counsel at the first opportunity, the Court used the language on page 10 of the opinion, that counsel should have filed a motion for stay of direct appeal, and if appropriate, requested remand to the trial court for a hearing on the adequacy issue. The opinion goes on to say that henceforth, in like circumstances, we will require such a procedure.

In speaking with Al Raby of your office, he agrees that the phrase "motion for stay of direct appeal" is probably inappropriate in terms of requiring such a procedure. We do not stay appeals in this Court, for the obvious reason of the two-term rule. I agree completely with the procedure outlined by the opinion, except for the unfortunate use of the phrase "motion for stay of direct appeal". In A98A0606 . Norman Luke v. The State, the appellant's attorney has filed a motion to stay the appeal citing this case.

Since the remittitur went out in Herndon on December 10th, I am not sure we have jurisdiction to revise the opinion. However, I would appreciate your office reviewing this situation, and if you deem it appropriate in a future opinion involving this same issue, clarifying the language along the lines of motion to stay.

If you have any comments or would like to discuss this matter with me, please give me a call.

Thank you.

cc:	Judge Edward H. Johnson

Al Raby