Wilkins v. StateWilkins v. State
Thе appellant, Thomas Carlton Wilkins, appeals from the circuit court’s denial of his A.R.Cr.P. 32 petition and its finding that “[t]he matter is one which is inаppropriate for relief because it is one ... [w]hich has already been made the basis of a post-conviction petition” and, also, that “the matter is not one for which petitioner would be or is entitled to relief on the merits.” In Wilkins’s petition, he cоntested the validity of his three 1990 convictions, one for first degree burglary and two for third degree burglary. These convictions rest upon Wilkins’s pleas of guilty. For these convictions, Wilkins was sentenced, as a habitual offender, to 16-year sentences, to run concurrently. Thе state failed to file a response to Wilkins’s petition.
Wilkins contends that the circuit court erroneously denied his Rule 32 petition without an evidentiary hearing. In response, the attorney general asserts that the instant petition was “obviously” filed outside the two-year period of limitations, Rule 32.2(c).
The attorney general also asserts that the instant petition was correctly denied becausе, he asserts, it is successive, Rule 32.2(b), within the guidelines delineated in Blount v. State,
The record in this case contains three case аction summaries showing that a Rule 32 petition had been previously filed, attacking Wilkins’s three burglary convictions. (We consider there to be only one prior petition, which, like the instant petition, was directed at the three convictions — not three separate petitions.) These case action summaries show only that, four days after the state had filed a motion to dismiss the petition, the circuit court denied the petition. The record does not contain all of Wilkins’s petition. It is missing the second and third pages of thе required form — the pages containing the questions calling for information about any appeal of the petitioner’s original conviction and about any previous petition filed with respect to that judgment. However, Wilkins’s petition does allege that a prior petition was “[dismissed without a hearing” on June 28, 1991. Because the case action summaries of the prior petition show that that petition was denied on June 28,1991, we assume that Wilkins is referring to this petition.
The court in Blount v. State clearly held that, “before a subsequent petition can be deemed successive, a previous petition must have been considered on its merits,” id. at 500. The Blount court further ruled that, regardless of whether the subsequent petition raises the same or different grounds, “the first inquiry in determining whether a subsequent petition ... is successive is whether a рrior petition was decided on its merits,” id. at 500-01. On the record before us, we cannot consider Wilkins’s first petition to have been adjudicated on its merits. Thus, the present petition cannot be barred as successive.
“In order for a petition to be procedurally barred as successive, the state must plead that the prior petition had beеn adjudicated on its merits. Kuk v. State,580 So.2d 750 (Ala.Cr.App.1991). See also Temp. Rule 20.3 [presently A.R.Cr.P. 32.3] (which states, in part, that ‘[t]he State shall have the burden of pleading any ground of preclusion’). [Footnote omitted.]”
Id.
Thus, we are left solely with the circuit court’s finding that “the matter is not one for which petitioner would be or is entitled to relief on the merits.” We do not consider the record before us to be adequate for a review of this finding, particularly where we have no record of the original convictions and where Wilkins’s has asserted over 10 pages of claims of inеffective assistance of counsel.
Accordingly, we remand this cause with directions that the state file a response in accordance with Ex parte Bice,
REMANDED WITH DIRECTIONS.
Notes
. The attorney general fails to reckon with the narrow application of this procedural bar, because this bar cаnnot foreclose the assertion of the trial court’s lack of jurisdiction or of an unauthorized sentence — allegations that have been asserted by Wilkins in the instant petition.