Drayton v. State

Court of Criminal Appeals of Alabama

Drayton v. State

675 So. 2d 1358, 1995 Ala. Crim. App. LEXIS 187, 1995 WL 261881

CourtCourt of Criminal Appeals of Alabama

DecidedMay 5, 1995

DocketCR-94-0353

StatusPublished

Cited by1 cases

This text of 675 So. 2d 1358 (Drayton 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

Drayton v. State, 675 So. 2d 1358, 1995 Ala. Crim. App. LEXIS 187, 1995 WL 261881 (Ala. Ct. App. 1995).

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Opinion

COBB, Judge.

This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17,1995.

Joseph Drayton appeals from the denial of his Rule 32, Ala.R.Crim.P., petition attacking his conviction for robbery in the first degree. He raises two issues on appeal.

First, the appellant alleges that his trial counsel was ineffective. This issue was raised and addressed on direct appeal; therefore, we are precluded from reviewing this issue in a Rule 32 proceeding. Rule 32.2(a)(4), Ala.R.Crim.P. Eckles v. State, 639 So.2d 523 (Ala.Crim.App.1993).

Second, the appellant alleges that his appellate counsel was ineffective. Because the State did not specifically respond to the allegations relating to the ineffective assistance of appellate counsel, we must consider these allegations to be facially meritori[1359]*1359ous. Further, the trial court did not address these allegations in its order denying the petition.

“The issue of whether the appellant’s counsel was ineffective for failure to raise specific issues on appeal must be considered and addressed by the trial court before it is subject to review by this Court. See, e.g., Floyd v. State, 571 So.2d 1221 (Ala.Cr.App.1989); Saffold v. State, 563 So.2d 1074 (Ala.Cr.App.1990); Henley v. State, [1991], 582 So.2d 590 (Ala.Cr.App.1991).”

Tedder v. State, 586 So.2d 50, 54 (Ala.Crim.App.1991).

Therefore, we remand this cause to the trial court with directions that the State be allowed to specifically respond to the allegations of ineffective assistance of appellate counsel. The trial court on remand shall determine whether an evidentiary hearing should be held on the appellant’s allegations. The trial court shall enter written findings with regard to each of the appellant’s allegations of ineffective assistance of appellate counsel. 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 84 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the trial court.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

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COBB, Judge.

This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17,1995.

Joseph Drayton appeals from the denial of his Rule 32, Ala.R.Crim.P., petition attacking his conviction for robbery in the first degree. He raises two issues on appeal.

First, the appellant alleges that his trial counsel was ineffective. This issue was raised and addressed on direct appeal; therefore, we are precluded from reviewing this issue in a Rule 32 proceeding. Rule 32.2(a)(4), Ala.R.Crim.P. Eckles v. State, 639 So.2d 523 (Ala.Crim.App.1993).

Second, the appellant alleges that his appellate counsel was ineffective. Because the State did not specifically respond to the allegations relating to the ineffective assistance of appellate counsel, we must consider these allegations to be facially meritori[1359]*1359ous. Further, the trial court did not address these allegations in its order denying the petition.

“The issue of whether the appellant’s counsel was ineffective for failure to raise specific issues on appeal must be considered and addressed by the trial court before it is subject to review by this Court. See, e.g., Floyd v. State, 571 So.2d 1221 (Ala.Cr.App.1989); Saffold v. State, 563 So.2d 1074 (Ala.Cr.App.1990); Henley v. State, [1991], 582 So.2d 590 (Ala.Cr.App.1991).”

Tedder v. State, 586 So.2d 50, 54 (Ala.Crim.App.1991).

Therefore, we remand this cause to the trial court with directions that the State be allowed to specifically respond to the allegations of ineffective assistance of appellate counsel. The trial court on remand shall determine whether an evidentiary hearing should be held on the appellant’s allegations. The trial court shall enter written findings with regard to each of the appellant’s allegations of ineffective assistance of appellate counsel. 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 84 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the trial court.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

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675 So. 2d 1358, 1995 Ala. Crim. App. LEXIS 187, 1995 WL 261881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drayton-v-state-alacrimapp-1995.

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