Smoot v. State

555 So. 2d 307, 1989 Ala. Crim. App. LEXIS 758, 1989 WL 140695

• Court: Court of Criminal Appeals of Alabama
• Decided: September 29, 1989
• Docket: 3 Div. 832
• Status: Published

Opinion

TYSON, Judge.

Charles Smoot appeals from the denial of his petition for post-conviction relief, pursuant to Rule 20, A.R.Crim.P. (Temp.), as amended April 1, 1987. This petition was denied, following the appointment of counsel and a full evidentiary hearing being held on the merits of the petitioner’s allegations. This hearing was in conformity with the rules of procedure as above noted.

Briefs have now been filed on the allegations raised by appellate counsel.

In reviewing this record, we find that the trial court failed to make specific findings on the merits of the allegations raised at the hearing in the court below. Rule 20.-9(d) reads as follows:

“(d) FINDINGS OF FACT.

“The court shall make specific findings of fact relating to each material issue of fact presented.”

On appeal appellate counsel asserts three issues which were presented in the trial court and on which no findings were made. They are as follows:

“I. Whether defendant was denied effective assistance of counsel, and further whether the trial court committed reversible error, when defendant was not advised of his right to appeal by either counsel or the court.

“II. Whether defendant was denied effective assistance of counsel because of trial counsel’s failure to properly object to the introduction of the tape recorded conversations admitted into evidence.

“HI. Whether the appellant was denied effective assistance of counsel because of trial counsel’s failure to call an alibi witness to testify.”

In accordance with Rule 20.9(d) as here-inabove noted, this cause is due to be and the same is, hereby, remanded with instructions to the trial court that a complete order be entered by the trial court, making specific findings of fact based upon the evidence presented in the trial court as to each of the three issues hereinabove set forth. A due return shall be seasonably filed in this court showing the findings of fact and the written order of the trial court as to these issues.

For the reasons shown, this cause is hereby remanded with directions.

REMANDED WITH DIRECTIONS.

All the Judges concur.