Bolton v. State

767 So. 2d 410, 2000 Ala. Crim. App. LEXIS 41, 2000 WL 337509

Opinion

BASCHAB, Judge.

The appellant, Timothy Franklin Bolton, was convicted of murder, a violation of § 13A-6-2, Ala. Code 1975. The trial court sentenced him to life in prison. He did not appeal his conviction. On September 3, 1998, the appellant filed a petition for post-conviction relief pursuant to Rule 32, Ala. R.Crim. P. In his petition, he alleged that he had not appealed his conviction through no fault of his own. In its response, the State conceded that, the appellant was indigent and that he was entitled to an out-of-time appeal. The circuit court found that the appellant was indigent. However, it denied the petition, stating that it did not have the authority to grant the appellant an out-of-time appeal. This appeal follows.

The appellant argues that he should be allowed to file an out-of-time appeal. The attorney general concedes that the appellant is indigent and requests that we remand this case to the circuit court with directions that it allow the appellant to file an out-of-time appeal. Contrary to the circuit court’s conclusion, it does have the authority to grant an out-of-time appeal. See Noble v. State, 708 So.2d 217 (Ala.Cr.App.1997); Cox v. City of Atmore, 677 So.2d 818 (Ala.Cr.App.1996); Rule 32.1(f), Ala. R.Crim. P.; Hugh Maddox, Alabama Rules of Criminal Procedure § 32.0 at 966, § 32.1 at 972 (3d ed.1999). Therefore, we reverse the circuit court’s judgment and remand this case to the circuit court with instructions that it grant the appellant leave to file an out-of-time appeal.

REVERSED AND REMANDED.

LONG, P.J., and McMILLAN, COBB, and FRY, JJ., concur.