#### David Joe WINBERRY v. STATE of Arkansas

CR 73-173

505 S.W. 2d 497

Opinion delivered February 25, 1973

*66 Box and Hall, for appellant.

Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.

LYLE Brown, Justice.

David Joe Winberry entered pleas of guilty to three felony charges and was sentenced to twelve years. Four months thereafter appellant filed a petition for post-conviction relief under our Rule I. The trial court denied the petition without an evidentiary hearing and on the basis of information contained in the records. One month thereafter appellant filed a second petition for post-conviction relief and set forth grounds not contained in his first petition. The trial court treated that petition as one for appeal. Appellant contends (1) that an attorney should have been appointed to represent him in presenting his first Rule I petition, and (2) that the second petition for post-conviction relief should have been heard on its merits in that appellant did not intelligently or understandably waive all grounds for relief by the filing of his first petition.

With reference to the first point, the court was not obliged to appoint counsel for appellant, when the court determined there was no necessity for an evidentiary hearing. Rule I (D) clearly indicates that counsel shall be appointed for an indigent defendant when there is to be a hearing conducted on the defendant’s petition.

With respect to the second point, appellant was not entitled to file a second petition for post-conviction relief. Rule I (H) requires all grounds for relief to be stated in the original or amended petition. Owen v. State, 249 Ark. 903, 462 S.W. 2d 469 (1971); Grayer v. State, 242 Ark. 640, 414 S.W. 2d 870 (1967).

Affirmed.