Toles v. State

565 So. 2d 301 | Ala. Crim. App. | 1990

The opinion previously issued in this case is hereby withdrawn and the following opinion substituted therefor.

The appellant, Nathaniel Toles, pleaded guilty to robbery in the first degree, a violation of § 13A-8-41, Code of Alabama 1975. He was sentenced to 20 years' imprisonment on July 31, 1989. On August 23, 1989, the appellant filed a petition pursuant to Rule 20, A.R.Crim.P.Temp. On September 6, 1989, the trial court, having found that the appellant was denied a direct appeal through no fault of his own, ruled that his Rule 20 petition be "treated as a notice of appeal." The Rule 20 petition was, according to a minute entry, denied "but treated by the court as notice of appeal;"

Issues presented to this court by counsel were those that might be raised in an appeal from the denial of a Rule 20 petition. Some issues that might be raised under a direct appeal are not presented here. We strike the appeal of the Rule 20 petition as being inapposite because we consider that the circuit court meant "notice of appeal" to mean a direct appeal on the merits, not an appeal from the denial of a Rule 20 petition. We direct that appellate counsel, or other counsel as may be appointed by the court, proceed as if the Rule 20 petition were a notice of appeal from the conviction timely filed, and not an appeal from the denial of the Rule 20 petition.

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH DIRECTIONS.

All the Judges concur.