Burrell v. State

Court of Criminal Appeals of Alabama

Burrell v. State

655 So. 2d 45, 1992 Ala. Crim. App. LEXIS 1169, 1992 WL 241122

CourtCourt of Criminal Appeals of Alabama

DecidedSeptember 30, 1992

DocketCr 91-1123

StatusPublished

Cited by2 cases

This text of 655 So. 2d 45 (Burrell 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.

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Burrell v. State, 655 So. 2d 45, 1992 Ala. Crim. App. LEXIS 1169, 1992 WL 241122 (Ala. Ct. App. 1992).

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Opinion

McMILLAN, Judge.

The appellant filed a petition under Rule 32, A.R.Cr.P., seeking relief from convictions of burglary in the first degree and assault in the second degree and from his sentences to life imprisonment and life imprisonment without parole, respectively, as a habitual offender. Before any response to the petition was made by the State, the trial court conducted an evidentiary hearing and issued an order, which stated, in pertinent part, as follows:

“Said evidentiary hearing having been held ore tenus, it is hereby, ORDERED, ADJUDGED AND DECREED said Petition is DENIED.”

The appellant’s petition contended that he had been denied effective assistance of counsel and that he had been improperly sentenced as a habitual offender. On appeal, he has added claims of error that are related to the evidentiary hearing. However, the added claims cannot be considered by this Court, because appellate review is limited to matters as to which adverse rulings have been invoked at the trial level. Cross v. State, 536 So.2d 155 (Ala.Cr.App.1988). As to the appellant’s original claims, from the record before this Court, it appears that the petition was meritorious on its face. In the absence of a denial of the allegations in the petition by the State, or findings based on the trial court’s personal knowledge the allegations of a petition must be accepted as true. See Colvin v. State, 521 So.2d 1352 (Ala.Cr. App.1987).

This Court remands the case to the trial court for further proceedings. On remand, the circuit judge may deny the petition if he has personal knowledge of the underlying facts and states the reasons for the denial in a written order. See Sheats v. State, 556 So.2d 1094 (Ala.Cr.App.1989). Otherwise, he should direct the district attorney to file a written response to the petition, see Rule 32.7, A.R.Cr.P., and should make [46]*46specific findings of fact related to each material issue presented at the evidentiary hearing as a part of his order. Rule 32.9(d), A.R.Cr.P. A return should be filed with this Court within 28 days of the date of this opinion.

REMANDED WITH INSTRUCTIONS.

All Judges concur MONTIEL, J., recuses.

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McMILLAN, Judge.

The appellant filed a petition under Rule 32, A.R.Cr.P., seeking relief from convictions of burglary in the first degree and assault in the second degree and from his sentences to life imprisonment and life imprisonment without parole, respectively, as a habitual offender. Before any response to the petition was made by the State, the trial court conducted an evidentiary hearing and issued an order, which stated, in pertinent part, as follows:

“Said evidentiary hearing having been held ore tenus, it is hereby, ORDERED, ADJUDGED AND DECREED said Petition is DENIED.”

The appellant’s petition contended that he had been denied effective assistance of counsel and that he had been improperly sentenced as a habitual offender. On appeal, he has added claims of error that are related to the evidentiary hearing. However, the added claims cannot be considered by this Court, because appellate review is limited to matters as to which adverse rulings have been invoked at the trial level. Cross v. State, 536 So.2d 155 (Ala.Cr.App.1988). As to the appellant’s original claims, from the record before this Court, it appears that the petition was meritorious on its face. In the absence of a denial of the allegations in the petition by the State, or findings based on the trial court’s personal knowledge the allegations of a petition must be accepted as true. See Colvin v. State, 521 So.2d 1352 (Ala.Cr. App.1987).

This Court remands the case to the trial court for further proceedings. On remand, the circuit judge may deny the petition if he has personal knowledge of the underlying facts and states the reasons for the denial in a written order. See Sheats v. State, 556 So.2d 1094 (Ala.Cr.App.1989). Otherwise, he should direct the district attorney to file a written response to the petition, see Rule 32.7, A.R.Cr.P., and should make [46]*46specific findings of fact related to each material issue presented at the evidentiary hearing as a part of his order. Rule 32.9(d), A.R.Cr.P. A return should be filed with this Court within 28 days of the date of this opinion.

REMANDED WITH INSTRUCTIONS.

All Judges concur MONTIEL, J., recuses.

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655 So. 2d 45, 1992 Ala. Crim. App. LEXIS 1169, 1992 WL 241122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burrell-v-state-alacrimapp-1992.

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