Belue v. State

Court of Criminal Appeals of Alabama

Belue v. State

690 So. 2d 530, 1996 Ala. Crim. App. LEXIS 338, 1996 WL 731699

CourtCourt of Criminal Appeals of Alabama

DecidedDecember 20, 1996

DocketCR-95-0700

StatusPublished

This text of 690 So. 2d 530 (Belue v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Belue v. State, 690 So. 2d 530, 1996 Ala. Crim. App. LEXIS 338, 1996 WL 731699 (Ala. Ct. App. 1996).

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Opinion

ON APPLICATION FOR REHEARING

LONG, Judge.

This court’s opinion of August 23, 1996, is withdrawn, and the following opinion is substituted therefor.

The appellant, Donald Ray Belue, appeals from the trial court’s dismissal of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., attacking his convictions for rape in the first degree, sodomy in [531]*531the first degree, and burglary in the first degree.

The appellant filed his Rule 32 petition pro se on November 20, 1995. At that time, the appellant’s motion for a new trial, which was filed by his appointed counsel, was pending in the trial court. The trial court dismissed the appellant’s petition as premature.

The trial court correctly dismissed the appellant’s petition, because the remedy afforded by a motion for a new trial was still available to him when his petition was filed. “Postconviction relief is a process for raising the issues unknown at trial or for some reason not available at trial.” 24 C.J.S. Criminal Law § 1612 (1989). A proceeding under Rule 32, Ala.R.Crim.P., “displaces all post-trial remedies except post-trial motions under Rule 24 [Ala.R.Crim.P.] and appeal.” Rule 32.4, Ala.R.Crim.P.

The trial court’s judgment is affirmed.

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING GRANTED; RULE 39(k) MOTION GRANTED; AFFIRMED.

All Judges concur.

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ON APPLICATION FOR REHEARING

LONG, Judge.

This court’s opinion of August 23, 1996, is withdrawn, and the following opinion is substituted therefor.

The appellant, Donald Ray Belue, appeals from the trial court’s dismissal of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., attacking his convictions for rape in the first degree, sodomy in [531]*531the first degree, and burglary in the first degree.

The appellant filed his Rule 32 petition pro se on November 20, 1995. At that time, the appellant’s motion for a new trial, which was filed by his appointed counsel, was pending in the trial court. The trial court dismissed the appellant’s petition as premature.

The trial court correctly dismissed the appellant’s petition, because the remedy afforded by a motion for a new trial was still available to him when his petition was filed. “Postconviction relief is a process for raising the issues unknown at trial or for some reason not available at trial.” 24 C.J.S. Criminal Law § 1612 (1989). A proceeding under Rule 32, Ala.R.Crim.P., “displaces all post-trial remedies except post-trial motions under Rule 24 [Ala.R.Crim.P.] and appeal.” Rule 32.4, Ala.R.Crim.P.

The trial court’s judgment is affirmed.

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING GRANTED; RULE 39(k) MOTION GRANTED; AFFIRMED.

All Judges concur.

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Bluebook (online)

690 So. 2d 530, 1996 Ala. Crim. App. LEXIS 338, 1996 WL 731699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belue-v-state-alacrimapp-1996.