PATTERSON, Chief Justice, for the Court:
Eddie Lee Wilson, alias Billy Wilson, was convicted on March 7, 1978 of attempted rape and on March 14, 1978 of armed robbery. On March 14, 1978 he was sentenced to serve thirty five years in the state penitentiary for the armed robbery conviction and ten years for the attempted rape conviction to run consecutively with the armed robbery conviction. Wilson filed Motions For a New Trial in both causes which were overruled on March 17, 1978, by the Circuit Court of Copiah County.
On March 27, 1978, Wilson filed a Notice to Appeal both convictions to this Court with the Circuit Clerk of Copiah County and with the official court reporter. He signed an Affidavit in Lieu of Bond for Appeal of the armed robbery conviction on March 9, 1978 (evidently this is a typographical error and should read May 9, 1978), and signed an Affidavit in Lieu of Bond for Appeal of the attempted rape conviction on May 9, 1978. Both affidavits were filed with the circuit clerk on May 9, 1978.
On June 21, 1978, this Court sustained a Motion to Docket and Dismiss both appeals because they were not timely filed. Thereafter, February 26, 1981, Wilson filed a Petition For an Out of Time Appeal to this Court which was remanded to the Circuit Court of Copiah County for proceedings in accordance with Jones v. State, 355 So.2d 89 (Miss. 1978). In compliance with the remand, a hearing was conducted in the Circuit Court of such county which denied the petitioner's request for an out of time appeal.
Wilson was the only witness in the hearing proceedings. He testified that in both the armed robbery and attempted rape cases, he was represented by Attorney Firnist Alexander who had been retained by his father. Wilson testified he advised Alexander that he wanted to appeal the convictions at the time he was found guilty and again when he was taken to the Copiah County Jail, and that he repeated the request after his arrival at Parchman. He stated that Alexander advised him he had been retained to appeal the cases and repeatedly assured him his convictions were on appeal. With the passage of time he became concerned that nothing was being done and contacted the Attorney General of the State who, after investigation, advised him his cases were not on appeal.
The trial court denied Wilson's Petition For an Out of Time Appeal finding that no misrepresentations had been made to Wilson concerning his right to appeal, his right to retained counsel, or his right to have court appointed counsel on appeal. The trial court was also justifiably concerned about the passage of time from the convictions until the hearing in this cause. However, the trial court expressed no finding as to whether Wilson had established by a preponderance of the evidence that Alexander misrepresented the status of the appeal.
There is no suggestion that the trial court did not adequately advise Wilson of his rights concerning an appeal, including his right to a court appointed attorney if he was indigent. Neither is there any question concerning the dismissal of the previous appeals because they were not timely filed.
The present problem arises from the directives of Jones v. State, 355 So.2d 89, 90 (Miss. 1978), in which we held that an out of time appeal is warranted "where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court," provided the above prerequisites are established by a preponderance of the evidence.
Wilson's sworn testimony that Alexander misrepresented to him the status of the two appeals was uncontradicted by other testimony, the physical facts or facts of common knowledge. Moreover, in the context given, the testimony is not unreasonable. Under these circumstances we must accept his testimony as true. Edwards v. Mid-State Paving Company, 300 So.2d 794 (Miss. 1974); Hearin-Miller Transporters, Inc. v. Currie, 248 So.2d 451 (Miss. 1971); Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442 (1953). We therefore are of the opinion the petitioner presented a prima facie case for the relief he sought.
Unfortunately this conclusion presents another issue and that is whether this Court should reverse and direct the trial court to permit the appeals or whether the cause should be reversed and remanded for additional testimony to be taken. A majority of the court is of the opinion the cause should be reversed and the court directed to permit the appeals.
The appeals permitted are in Cause Nos. 12,928-A and 12,929-A. Mention is made in the record of Cause No. 12,930-A however it was not included in the Petition For Out of Time Appeal.
REVERSED. THE TRIAL COURT IS DIRECTED TO PERMIT THE APPEALS.
ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.
DAN M. LEE, J., specially concurs.
WALKER and BROOM, P.JJ., dissent.