McShan v. State

608 So. 2d 449, 1992 Ala. Crim. App. LEXIS 1661, 1992 WL 330711

Opinion

The appellant, George Walter McShan, Jr., appeals from the denial of his petition for a writ of habeas corpus.

Although the appellant's petition was styled as a habeas corpus petition, the issues presented in the petition are cognizable in a petition for post-conviction relief filed pursuant to Rule 32.6, A.R.Crim.P. This court has stated:

"When a post-conviction petition seeking relief from conviction or sentence is filed with the circuit court that is not in the proper form as prescribed by Rule 32, notwithstanding the style of the petition, the court should return the petition to the petitioner to allow him to file the proper form."

Drayton v. State, 600 So.2d 1088, 1091 (Ala.Cr.App. 1992) (emphasis in original); see also Smith v. State,609 So.2d 449 (Ala.Cr.App. 1992).

We therefore reverse the judgment of the circuit court denying the petition and remand this cause to the circuit court with directions that the petition for writ of habeas corpus be returned to the appellant to allow him to file a correct petition for post-conviction relief under Rule 32.

REVERSED AND REMANDED.

All the Judges concur.