Henry v. State

387 So. 2d 328 (1980)

Thomas HENRY v. STATE.

7 Div. 741.

Court of Criminal Appeals of Alabama.

August 19, 1980.

Wayne H. Smith, Heflin, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from a denial of a petition for writ of error coram nobis.

Although the record contains no response by the state or county authorities to the petition, the petition was dismissed without a hearing. The trial judge made a written finding that "the petition fails to allege sufficient grounds requiring hearing by this court." This was error.

The petition contains matters and allegations which, if true, entitle the petitioner to relief. Summers v. State, 366 So. 2d 336 (Ala.Cr.App.1978), cert. denied, 366 So. 2d 346 (Ala.1979). "Since the petition was meritorious on its face, petitioner should have been afforded a hearing on the merits. . . See Aaron v. State, 283 Ala. 52, 214 So. 2d 327." Populus v. State, 51 Ala. App. 166, 283 So. 2d 617 (1973). See also Pace v. State, 369 So. 2d 1281 (Ala.Cr.App. 1979).

The judgment of the Circuit Court dismissing the petition is reversed. This cause is remanded with directions that an evidentiary hearing be held at which the defendant is present and represented by counsel. We specifically note that the State has filed a Motion to Remand requesting this very same action.

REVERSED AND REMANDED WITH DIRECTIONS.

All Judges concur.