McMillian v. State

594 So. 2d 1289 (1992)

Walter McMILLIAN v. STATE.

1 Div. 864.

Court of Criminal Appeals of Alabama.

January 24, 1992.

Bryan A. Stevenson, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

Prior report: Ala., 594 So. 2d 1288.

PATTERSON, Presiding Judge.

The appellant, Walter McMillian, alleges, by way of a A.R.Crim.P. 32 petition filed in the trial court, that a key state witness has recanted his trial testimony and that, consequently, the appellant's conviction was obtained by the use of perjured testimony. He further asserts that this evidence is newly discovered. Upon motion by the state, the Alabama Supreme Court, without opinion, has ordered that the petition for writ of certiorari be stayed pending an evidentiary hearing on the appellant's claim and has remanded the case to this court with instructions that we remand it to the trial court for such a hearing.

We, therefore, remand this case to the trial court with instructions that that court conduct an evidentiary hearing to determine whether the appellant's conviction was obtained by perjured testimony as the appellant avers in his Rule 32 petition. Upon completion of the hearing, the circuit clerk shall make due return regarding all proceedings, along with a transcript of the hearing, to this court. The trial court shall take all action directed in sufficient time to permit the circuit clerk to make a proper return to this court at the earliest possible time within 45 days of the release of this opinion. Upon completion of the proceedings, the appellant's Rule 32 petition should be dismissed, because, by agreement of the parties, the issue raised in the petition will be considered as a part of this appeal.

REMANDED WITH INSTRUCTIONS.

All Judges concur.