Cook v. State

668 So. 2d 894, 1995 Ala. Crim. App. LEXIS 1045, 1995 WL 317044

Opinion

ON APPLICATION FOR REHEARING

COBB, Judge.

This court’s unpublished memorandum of January 13, 1995, is hereby withdrawn. The appellants have presented two issues of ineffective assistance of counsel in their briefs on appeal. Although claims of ineffective assistance of counsel cannot be raised for the first time on appeal, Ex parte Jackson, 598 So.2d 895 (Ala.1992), we are unable to determine whether this issue was raised in the trial court. The docket sheet indicates that a motion for a new trial under Jackson was filed and that motion was denied by the trial court. However, the motion for new trial is not contained in the record on appeal. Therefore, on the authority of Rule 10(g), Ala.R.App.P., this cause is remanded to the trial court with instructions that the record on appeal be supplemented with the motion for a new trial that was filed on January 26, 1994.

The trial court shall take necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 70 days of the release of this opinion.

MOTIONS DENIED; APPLICATIONS GRANTED; MEMORANDUM WITHDRAWN; REMANDED WITH INSTRUCTIONS.

All the Judges concur.