Briggs v. State

Court of Criminal Appeals of Alabama

Briggs v. State

630 So. 2d 158, 1993 Ala. Crim. App. LEXIS 1095, 1993 WL 381499

CourtCourt of Criminal Appeals of Alabama

DecidedSeptember 30, 1993

DocketCR 92-1578

StatusPublished

Cited by1 cases

This text of 630 So. 2d 158 (Briggs 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

Briggs v. State, 630 So. 2d 158, 1993 Ala. Crim. App. LEXIS 1095, 1993 WL 381499 (Ala. Ct. App. 1993).

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Opinion

BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for post-conviction relief. The appellant, Reginald Lynn Briggs, challenges his 1992 guilty plea conviction for burglary in the third degree. There was no direct appeal [159]*159from that conviction. The petition alleges that the appellant “was improperly sentenced as a habitual offender because he did not have notice of the state’s intention to proceed under the HFOA and that the state failed to offer proper proof of his prior convictions.” R. 19. Relief is precluded because the issue could have been raised on direct appeal. Rule 32.2(a)(5), A.R.Crim.P. See Robinson v. State, 629 So.2d 1 (Ala.1993); Nichols v. State, 629 So.2d 51 (Ala.Cr.App.1993).

The appellant also argues that his “counsel was ineffective at petitioner’s sentencing hearing because his attorney failed to properly object to the petitioner being sentenced to twenty (20) years as a habitual offender when the State had given no notice to petitioner that the State was going to proceed under the habitual offender statute, nor ha[s] the State proved, or attempted to properly prove a single prior felony conviction in this case.” R. 21.

The circuit court denied the petition for post-conviction relief, stating, “The matter is one which is inappropriate for relief because it is one which could have been but was not raised on appeal.” R. 24. The attorney general has filed a motion to remand this cause so that the circuit court can address the substantive merits of the claim of ineffective assistance of counsel.

Therefore, this cause is remanded to the circuit court with directions that that court consider the substantive merits of the appellant’s allegations of ineffective assistance of counsel according to the procedures set forth in Rule 32.7 and/or Rule 32.9, A.R.Crim.P. Within 90 days from the date of this opinion, the record on appeal shall be supplemented as directed by the circuit court, and the circuit court shall file a response in this Court reflecting compliance with these directions.

REMANDED WITH DIRECTIONS.

All Judges concur.

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BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for post-conviction relief. The appellant, Reginald Lynn Briggs, challenges his 1992 guilty plea conviction for burglary in the third degree. There was no direct appeal [159]*159from that conviction. The petition alleges that the appellant “was improperly sentenced as a habitual offender because he did not have notice of the state’s intention to proceed under the HFOA and that the state failed to offer proper proof of his prior convictions.” R. 19. Relief is precluded because the issue could have been raised on direct appeal. Rule 32.2(a)(5), A.R.Crim.P. See Robinson v. State, 629 So.2d 1 (Ala.1993); Nichols v. State, 629 So.2d 51 (Ala.Cr.App.1993).

The appellant also argues that his “counsel was ineffective at petitioner’s sentencing hearing because his attorney failed to properly object to the petitioner being sentenced to twenty (20) years as a habitual offender when the State had given no notice to petitioner that the State was going to proceed under the habitual offender statute, nor ha[s] the State proved, or attempted to properly prove a single prior felony conviction in this case.” R. 21.

The circuit court denied the petition for post-conviction relief, stating, “The matter is one which is inappropriate for relief because it is one which could have been but was not raised on appeal.” R. 24. The attorney general has filed a motion to remand this cause so that the circuit court can address the substantive merits of the claim of ineffective assistance of counsel.

Therefore, this cause is remanded to the circuit court with directions that that court consider the substantive merits of the appellant’s allegations of ineffective assistance of counsel according to the procedures set forth in Rule 32.7 and/or Rule 32.9, A.R.Crim.P. Within 90 days from the date of this opinion, the record on appeal shall be supplemented as directed by the circuit court, and the circuit court shall file a response in this Court reflecting compliance with these directions.

REMANDED WITH DIRECTIONS.

All Judges concur.

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Bluebook (online)

630 So. 2d 158, 1993 Ala. Crim. App. LEXIS 1095, 1993 WL 381499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/briggs-v-state-alacrimapp-1993.

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