Smith v. State

607 So. 2d 313, 1992 Ala. Crim. App. LEXIS 1202, 1992 WL 240944

Opinion

ON RETURN TO REMAND

McMILLAN, Judge.

We remanded this cause to the trial court in order for the district attorney to respond to the appellant’s Rule 32, A.R.Cr.P., claim that his robbery conviction was obtained through the use of evidence gained pursuant to an unlawful arrest and search 607 So.2d 311. The trial court has now filed a return, which states that in response to the appellant’s petition, the district attorney argued that the claim raised by the appellant in his petition should have been raised on direct appeal but was not and that the issue is moot because, although the petitioner was searched upon his arrest, no items of evidence were found. The district attorney also moved to dismiss the petition, pursuant to Rule 32.2(a)(5), A.R.Cr.P.

The district attorney’s response complied with the specificity requirements of Ex parte Rice, 565 So.2d 606 (Ala.1990). The petition was properly dismissed. Rule 32.-7(d), A.R.Cr.P.

AFFIRMED.

All Judges concur.