Strother v. State

612 So. 2d 1359, 1992 Ala. Crim. App. LEXIS 2588, 1992 WL 387185

Opinion

TAYLOR, Judge.

The appellant, Calvin Strother, appeals from the denial of his petition for post-conviction relief styled as a petition for a writ of habeas corpus. The appellant’s petition for post-conviction relief presented issues cognizable in a petition filed pursuant to Rule 32.6, A.R.Crim.P.

“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 McShan v. State, 608 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 habe-as corpus be returned to the appellant to allow him the opportunity to amend and file a correct petition for post-conviction relief cognizable under Rule 32, A.R.Crim.P.

REVERSED AND REMANDED.

All the Judges concur.