Lynn v. State

629 So. 2d 89 (1993)

Fredrick LYNN v. STATE.

CR-92-0391.

Court of Criminal Appeals of Alabama.

July 23, 1993.

Rehearing Denied September 3, 1993.

Certiorari Denied October 29, 1993.

Fredrick Lynn, pro se.

James H. Evans, Atty. Gen., and Kenneth Nunnelly, Asst. Atty. Gen., for appellee.

Alabama Supreme Court 1921900.

PATTERSON, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BOWEN, P.J., and McMILLAN and MONTIEL, JJ., concur.

TAYLOR, J., dissents with opinion.

TAYLOR, Judge (dissenting).

I dissent from the majority's holding in its unpublished memorandum that the appellant's petition is successive and that it is therefore procedurally barred from this court's review.

The appellant, Fredrick Lynn, was convicted of capital murder and was sentenced to death by electrocution. The appellant's conviction was reversed in Ex parte Lynn, 477 So. 2d 1385 (Ala.1985), and the appellant was once again tried and was found guilty of capital murder. This court affirmed his conviction in Lynn v. State, 543 So. 2d 704 (Ala. Cr.App.1987), and the Alabama Supreme Court affirmed our judgment in Ex parte Lynn, 543 So. 2d 709 (Ala.1988). The United States Supreme Court denied certiorari review in Lynn v. Alabama, 493 U.S. 945, 110 S. Ct. 351, 107 L. Ed. 2d 338 (1989).

In 1990, the appellant filed a petition for post-conviction relief pursuant to Rule 20, A.R.Crim.P.Temp., attacking his conviction and his sentence. While that petition was pending, the appellant entered into an agreement with the state whereby his sentence would be reduced to life imprisonment without parole if he agreed not to seek any post-conviction relief from his conviction and his sentence. The petition was then denied.

The appellant filed the current petition for post-conviction relief in 1992. He argues that his agreement with the state was not voluntary because, he says, he did not understand the consequences of agreeing never to question his conviction and sentence.

The majority concludes that this second petition is successive. I do not agree. The first petition was pending when the appellant entered into the agreement with the state in exchange for his promise never to question his conviction or his sentence. This second petition questions the legality of the agreement. The appellant has had no prior opportunity to raise this question, thus the petition cannot be successive within the meaning of Rule 32.2(b), A.R.Crim.P. Even if the petition was successive, the right to appeal is a right which the state cannot bargain away from a defendant.