Reed v. StateReed v. State
- Reporters:
- , ,
- Before:
- McMillan
On February 22, 1993, the appellant, Donald Gordon Reed, filed a petition under Rule 32, A.R.Cr.P., seeking relief from a 1989 sentence of 18 years’ imprisonmеnt, which he stated had been imposed pursuant to a plea of guilty to a charge оf robbery in the third degree. He further stated that he had not appealed this convictiоn and sentence. The appellant contends that the sentence exceеded the maximum authorized by law for a Class C felоny because he was not sentenced as a habitual felony offender.
On April 21, 1993, the trial court summarily denied the appellant’s pеtition, stating that it was procedurally barred under Rule 32.2(c), A.R.Cr.P., because the appellаnt had failed to file within the applicablе limitations period. The trial court also stаted that it was successive under Rule 32.2(b), A.R.Cr.P., becаuse he had failed to show good cause for not including the present ground in two previоus petitions for post-conviction relief. No response from the district attorney аppears in the record on appeal.
The appellant contends thаt the trial court erred in denying his petition as time-barred because, he argues, his claim аrises under Rule 32.1(c), A.R.Cr.P., to which the limitations period does not apply. He further contends thаt the trial court improperly denied his pеtition as successive because, he says, there was no showing that the prior petition had been adjudicated on the merits. The Stаte has requested that this cause be *1303remanded to allow the district attorney to file аn appropriate response. A response is not required if the trial court cаn ascertain from a simple reading of thе petition that, assuming every allegation of the petition to be true, it is obviously without merit оr is precluded. Bishop v. State, 608 So.2d 345 (Ala.1992).
Based on the record, thе trial court was unable to make such a determination in the present case. Therеfore, this cause is due to be remanded to the trial court to allow the district attorney to file a response to the apрellant’s petition. On remand, the trial court mаy also conduct an evidentiary hearing or take such other action as is necessary for a determination on the appellant’s petition. The trial court should file its return with this Court within 45 days of the date of this opinion.
REMANDED WITH INSTRUCTIONS.
All Judges concur.