Hannon v. State, 682 So. 2d 503

Hannon v. State

682 So. 2d 503 | Ala. Crim. App. | 1996

This is an appeal from the summary denial of a petition for post-conviction relief pursuant to Rule 32, Ala.R.Crim.P. The appellant, Thyllus Brown Hannon, challenges the sentence for his 1995 conviction for unlawful possession of a controlled substance, a Class C felony. § 13A-12-212(b), Code of Alabama 1975. The appellant's petition alleged that he was sentenced to 20 years' imprisonment, although, he says, the maximum sentence authorized for a Class C felony is 10 years, § 13A-5-6(a)(3), and he was not sentenced as a habitual offender. "When the court imposes sentence in excess of that authorized by statute, it exceeds its jurisdiction, and the sentence is consequently void." Ferguson v. State, 565 So.2d 1172, 1173 (Ala.Cr.App. 1990).

In its response to the appellant's petition, the State did not specifically refute appellant's allegations, but instead asserted that the appellant's claim was procedurally barred. The trial court denied the appellant's petition by simply stating that the appellant's claim could have been, but was not, raised at trial. However, " '[a] claim of a lack of jurisdiction to render judgment or to impose sentence is not precluded as a basis for relief by Rule 20.2 [now Rule 32] even though the question of jurisdiction could have been was not raised at trial or on appeal.' " Lancaster v. State,638 So.2d 1370, 1373 *504 (Ala.Cr.App. 1993), quoting Ferguson, supra, at 1173. The appellant has alleged facts that, if true, entitle him to relief.

Because there is nothing in the record on appeal from the denial of the petition to refute the appellant's allegations, this case is remanded with directions to the trial court to hold an evidentiary hearing on the appellant's petition. A return to remand shall be filed with this Court within 42 days of the date of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the trial court as well as the trial court's findings of fact relating to the issue raised by the appellant.

REMANDED WITH DIRECTIONS.

All Judges concur.