Mixon v. State

611 So. 2d 420 (1992)

Timothy Lebaron MIXON v. STATE.

No. CR-91-329.

Court of Criminal Appeals of Alabama.

June 12, 1992.

Glenn Davidson, Mobile, for appellant.

James H. Evans, Atty. Gen., and Robert Lusk, Jr., Asst. Atty. Gen., for appellee.

*421 McMILLAN, Judge.

This appeal involves the denial of petitioner's Rule 32, A.R.Cr.P., petition.

Petitioner was charged with the offense of murder, made capital by § 13A-5-40, Code of Alabama 1975, and initially entered a plea of not guilty. During his trial, the petitioner withdrew his not guilty plea and entered a plea of guilty. The petitioner waived a hearing on mitigation and presentence investigation and was subsequently sentenced to life imprisonment without parole.

Petitioner then filed a pro se notice of appeal. This court dismissed petitioner's appeal as being untimely. The petitioner then filed the present petition attacking his conviction on the following grounds: 1) that his guilty plea was involuntary; 2) that his trial counsel was ineffective; 3) that his trial counsel failed to appeal his conviction or to advise him how to appeal; 4) that the trial court erred by not instructing the jury on the lesser included offense; and 5) that the evidence presented was insufficient to sustain a conviction. The State moved for summary dismissal because, it argued, 1) the claims were precluded under Rule 32.2(a)(4), A.R.Cr.P; 2) the appellant failed to state a sufficient claim; and 3) the claims were without merit. The trial court conducted an evidentiary hearing on the petition. Subsequent thereto, the petition was denied and a final judgment was entered. However, an examination of the trial judge's order reveals that it does not contain specific findings of fact regarding each material issue, as required by Rule 32.9(d), A.R.Cr.P. Further, the order does not address the petitioner's claim that he was denied his right to appeal.

For the foregoing reasons, this case is remanded to the trial court for further proceedings under Rule 32, A.R.Cr.P.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.