Lockett v. State

644 So. 2d 33, 1993 Ala. Crim. App. LEXIS 1008, 1993 WL 271795

Opinions

MONTIEL, Judge.

Aljay Lockett filed a petition for writ of habeas corpus with the Montgomery Circuit Court, alleging that he had been subjected to an illegal arrest. The trial court dismissed the petition on the basis that a petition for writ of habeas corpus is not a substitute for a direct appeal or another post-conviction proceeding under Rule 32, A.R.Cr.P. However, the trial court did not give the appellánt the opportunity to file a petition in the form required by 32.6(a), A.R.Crim.P. Therefore, this case is remanded to the Montgomery Circuit Court with directions that the appellant’s petition be returned to him so that he can have the opportunity to file- a proper Rule 32 petition as required by Rule 32.6, A.R.Crim.P. Ex parte Baker, 620 So.2d 148 (Ala.Crim.App.1993); Drayton v. State, 600 So.2d 1088 (Ala.Crim.App.1992); Nickerson v. State, 597 So.2d 762 (Ala.Crim.App.1992). If the appellant files a proper petition, the prosecutor shall answer the allegations made in the petition as required by Rule 32.7(a), A.R.Crim.P.

REVERSED AND REMANDED.

All the Judges concur .except Bowen, P.J., who dissents with opinion.