Cox v. City of Atmore

677 So. 2d 818 (1996)

Wade COX v. CITY OF ATMORE.

CR-95-171.

Court of Criminal Appeals of Alabama.

January 19, 1996.

Henry Wade Cox, pro se.

James Michael Perry, Brewton, for Appellee.

TAYLOR, Presiding Judge.

The appellant, Wade Cox, appeals the summary denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala. R.Crim.P. The appellant was convicted of failing to purchase a business license to operate a salvage company. The appellant attempted to appeal to this court but the appeal was dismissed as untimely. The appellant then filed a petition for post-conviction relief, alleging, among other things, that his counsel's performance was ineffective because he did not timely file the notice of appeal with this court. The trial court summarily denied the petition on the City of Atmore's motion, which failed to address the appellant's contention concerning the failure of his trial counsel to timely appeal his case.

The trial court erred in denying the petition. If the failure to timely file the notice of appeal was through no fault of the appellant's, he is entitled to an out-of-time appeal. See Starks v. State, 662 So. 2d 1214 (Ala.Cr. App.1994), and Rule 32.1(f), Ala.R.Crim.P. The appellant is entitled to an evidentiary hearing on this issue. Due return should be filed in this court no later than 42 days from the date of this opinion. The court should make findings of fact concerning this contention as required by Rule 32.9(d), Ala. R.Crim.P.

REMANDED WITH DIRECTIONS.[*]

All the Judges concur.

[*] Note from the Reporter of Decisions: On April 19, 1996, on return to remand, the Court of Criminal Appeals dismissed the appeal. On May 30, 1996, the Court withdrew its April 19, 1996, order and reversed the trial court's order denying the Rule 32, Ala.R.Crim.P., petition and remanded the cause for the trial court to grant the appellant an out of time appeal in cases CC-93-435 and -436.