McMillian v. State

Court of Criminal Appeals of Alabama

McMillian v. State

594 So. 2d 1289, 1992 Ala. Crim. App. LEXIS 1

CourtCourt of Criminal Appeals of Alabama

DecidedJanuary 24, 1992

StatusPublished

Cited by7 cases

This text of 594 So. 2d 1289 (McMillian 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

McMillian v. State, 594 So. 2d 1289, 1992 Ala. Crim. App. LEXIS 1 (Ala. Ct. App. 1992).

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Opinion

ON REMAND FROM THE ALABAMA SUPREME COURT

The appellant, Walter McMillian, alleges, by way of a A.R.Crim.P. 32 petition filed in the trial court, that a key state witness has recanted his trial testimony and that, consequently, the appellant's conviction was obtained by the use of perjured testimony. He further asserts that this evidence is newly discovered. Upon motion by the state, the Alabama Supreme Court, without opinion, has ordered that the petition for writ of certiorari be stayed pending an evidentiary hearing on the appellant's claim and has remanded the case to this court with instructions that we remand it to the trial court for such a hearing.

We, therefore, remand this case to the trial court with instructions that that court conduct an evidentiary hearing to determine whether the appellant's conviction was obtained by perjured testimony as the appellant avers in his Rule 32 petition. Upon completion of the hearing, the circuit clerk shall make due return regarding all proceedings, along with a transcript of the hearing, to this court. The trial court shall take all action directed in sufficient time to permit the circuit clerk to make a proper return to this court at the earliest possible time within 45 days of the release of this opinion. Upon completion of the proceedings, the appellant's Rule 32 petition should be dismissed, because, by agreement of the parties, the issue raised in the petition will be considered as a part of this appeal.

REMANDED WITH INSTRUCTIONS.

All Judges concur.

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ON REMAND FROM THE ALABAMA SUPREME COURT

The appellant, Walter McMillian, alleges, by way of a A.R.Crim.P. 32 petition filed in the trial court, that a key state witness has recanted his trial testimony and that, consequently, the appellant's conviction was obtained by the use of perjured testimony. He further asserts that this evidence is newly discovered. Upon motion by the state, the Alabama Supreme Court, without opinion, has ordered that the petition for writ of certiorari be stayed pending an evidentiary hearing on the appellant's claim and has remanded the case to this court with instructions that we remand it to the trial court for such a hearing.

We, therefore, remand this case to the trial court with instructions that that court conduct an evidentiary hearing to determine whether the appellant's conviction was obtained by perjured testimony as the appellant avers in his Rule 32 petition. Upon completion of the hearing, the circuit clerk shall make due return regarding all proceedings, along with a transcript of the hearing, to this court. The trial court shall take all action directed in sufficient time to permit the circuit clerk to make a proper return to this court at the earliest possible time within 45 days of the release of this opinion. Upon completion of the proceedings, the appellant's Rule 32 petition should be dismissed, because, by agreement of the parties, the issue raised in the petition will be considered as a part of this appeal.

REMANDED WITH INSTRUCTIONS.

All Judges concur.

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594 So. 2d 1289, 1992 Ala. Crim. App. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmillian-v-state-alacrimapp-1992.

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