Noble v. State

708 So. 2d 217 (1997)

Brent Edward NOBLE v. STATE.

CR-96-0982.

Court of Criminal Appeals of Alabama.

August 22, 1997.

Brent Edward Noble, appellant, pro se.

Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

COBB, Judge.

Brent Edward Noble appeals from the summary denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala. R.Crim. P. Noble pleaded guilty to, and was convicted of, burglary in the third degree. Noble attempted to appeal to this court, but the appeal was dismissed as untimely. Noble then filed a Rule 32 petition, alleging, among other things, that his counsel had failed to appeal within the prescribed time and that the failure was without fault on his part. See Rule 32.1(f). The trial court summarily denied the petition on the State's motion; the State did not address Noble's contention concerning the failure of his trial counsel to timely appeal.

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. We are remanding this case to the trial court with instructions for that court to hold a hearing; 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. See Cox v. City of Atmore, 677 So. 2d 818 (Ala.Cr.App. 1996).

REMANDED WITH INSTRUCTIONS.[*]

All the Judges concur.

[*] Note from the reporter of decisions: On November 14, 1997, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.