McDonald v. State

570 So. 2d 879, 1990 Ala. Crim. App. LEXIS 1615, 1990 WL 187097

• Court: Court of Criminal Appeals of Alabama
• Decided: September 21, 1990
• Docket: CR 89-611
• Status: Published

Opinion

TYSON, Judge.

Nathaniel McDonald appeals from the denial of his petition seeking post-conviction relief under Rule 20, A.R.Crim.P.Temp. This petition was denied by the circuit court, following an evidentiary hearing, in an order by the circuit judge.

The appellant initially entered a plea of guilty and received a life imprisonment sentence for the offense of murder. The appellant sought to assert at the post-conviction proceeding that his conviction was obtained in violation of the privilege of self incrimination and, also, that he was denied the effective assistance of counsel. The trial court correctly conducted an evidentia-ry hearing on these two allegations.

However, the record furnished this court does not contain the evidence taken at the post-conviction hearing. The attorney general points out that under Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) and Simpson v. State, 179 So.2d 335 (Ala.Crim.App.1965), the appellant was entitled to receive a transcript of this post-conviction proceeding for purposes of appeal.

The attorney general has moved this court to remand this cause to include such transcript within the appeal and to furnish a copy to appellant and his counsel.

Pursuant to the motion hereinabove noted, this cause is remanded to circuit court with instructions that a transcript of the Rule 20 proceeding be prepared, including the proceedings in which the appellant mi-tially pleaded guilty, and that all of such be included in the transcript of the hearing seeking post-conviction relief. The transcript shall then be filed in this court as a supplemental transcript and a copy furnished appellant and his counsel.

REMANDED WITH DIRECTIONS.

All the Judges concur.