Bartlette v. State

472 So. 2d 706 (1985)

Luther BARTLETTE v. STATE.

5 Div. 986.

Court of Criminal Appeals of Alabama.

May 28, 1985.

Charles R. Gaddy, Millbrook, for appellant.

Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for writ of habeas corpus alleging the loss of prison incentive good time. The petition is meritorious on its face and the District Attorney's motion to dismiss is not responsive to the petitioner's allegations concerning the loss of good time as the petitioner recognized in his answer to the motion to dismiss. The petitioner is entitled to an evidentiary hearing. Ex parte Boatwright, 471 So. 2d 1257 (Ala. 1985). Where the State does not file an answer or return denying the specific allegations of fact in the petition, the facts as set out in the petition must be taken as true. Ex parte Williams, 461 So. 2d 1339 (Ala.1984) (Torbert, C.J., concurring specially).

The judgment of the circuit court denying the petition is reversed and this cause is remanded with directions that an evidentiary hearing be held concerning the merits and allegations of the petition.

REVERSED AND REMANDED WITH DIRECTIONS.

All Judges concur.