Lynn v. State

641 So. 2d 1254, 1993 Ala. Crim. App. LEXIS 991, 1993 WL 246356

Opinion

MONTIEL, Judge.

Cornelius Donald Lynn filed a Rule 32, AR.Cr.P., petition with the Montgomery Circuit Court attacking his conviction for first degree robbery. This cause must be remanded to the circuit court for two reasons. First, the prosecutor failed to file a response to the allegations raised in the petition as required by Rule 32.7(a), AR.Crim.P., and Ex Parte Rice, 565 So.2d 606 (Ala.1990). Second, the trial court improperly denied the relief sought in the petition because it said the petition was procedurally barred by the limitations period set out in Rule 32.2(c), A.R.Crim.P. Several of the allegations in the petition do not fall under Rule 32.1(a), (e), and (f), and, therefore, the trial court improperly determined that the entire petition was procedurally barred.

Thus, this cause is remanded to the trial court with instructions that the State respond to the allegations raised in the appellant’s petition and that an evidentiary hearing on the appellant’s petition be held, if necessary. The trial court is further instructed to file a return to remand with this court within 60 days of this opinion.

REMANDED WITH DIRECTIONS.

All the Judges concur.