Baxter v. State

Court of Criminal Appeals of Alabama

Baxter v. State

641 So. 2d 1255, 1993 Ala. Crim. App. LEXIS 1007

Court of Criminal Appeals of Alabama·Decided July 23, 1993·No. CR-92-0305·Published

Opinion

MONTIE L, Judge.

Keeley Baxter filed a Rule 32, A.R.Cr.P., petition with the Montgomery Circuit Court, attacking his convictions for attempted murder and assault in the first degree. The circuit court summarily denied the petition. A review of the record reveals that the State failed to contest the appellant’s allegations by filing responsive pleadings as required by Rule 32.7(a), A.R.Crim.P. See also Ex parte Rice, 565 So.2d 606 (Ala.1990). From our review of the petition, (and, assuming the truth of the appellant’s allegations), we are unable to say that each allegation is without merit or precluded. Bishop v. State, 608 So.2d 345 (Ala.1992). Therefore, we hold that the trial court should not have summarily dismissed the petition without requiring the state to respond to the allegations raised in the petition. Glass v. State, 627 So.2d 1096 (Ala.Crim.App.1993).

Therefore, this cause is remanded to the circuit court for further proceedings consistent with this opinion. A return to remand shall be filed with this court within 60 days of this opinion.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

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MONTIE L, Judge.

Keeley Baxter filed a Rule 32, A.R.Cr.P., petition with the Montgomery Circuit Court, attacking his convictions for attempted murder and assault in the first degree. The circuit court summarily denied the petition. A review of the record reveals that the State failed to contest the appellant’s allegations by filing responsive pleadings as required by Rule 32.7(a), A.R.Crim.P. See also Ex parte Rice, 565 So.2d 606 (Ala.1990). From our review of the petition, (and, assuming the truth of the appellant’s allegations), we are unable to say that each allegation is without merit or precluded. Bishop v. State, 608 So.2d 345 (Ala.1992). Therefore, we hold that the trial court should not have summarily dismissed the petition without requiring the state to respond to the allegations raised in the petition. Glass v. State, 627 So.2d 1096 (Ala.Crim.App.1993).

Therefore, this cause is remanded to the circuit court for further proceedings consistent with this opinion. A return to remand shall be filed with this court within 60 days of this opinion.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

Baxter v. State, 641 So. 2d 1255, 1993 Ala. Crim. App. LEXIS 1007 (Ala. Ct. App. 1993).

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Opinion

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