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563 So. 2d 1072

Roberts v. State

Court of Criminal Appeals of Alabama

Decided April 27, 1990

Court of Criminal Appeals of Alabama · decided 1990-04-27

Cited by 5 later decisions — most recently May 1998

5 state decisions

Key passage — most relied on by later courts

“1. The circuit court will notify the appellant that he must complete a separate petition to challenge his sentencing in case number CC-84-730. The circuit court will give the appellant 30 days from the date of notification by mail to file his new petition. 2. Upon the expiration of the 30-day period or upon receipt of the new petition, whichever occurs first, the circuit court will hold an evidentiary hearing or an alternative proceeding in compliance with Rule 32.9(a), Ala.R.Crim.P., to determine the factual merits of the appellant's petition in case CC-84-286 and, if the appellant files a petition in CC-84-730, to rule on that petition. If the appellant was sentenced in violation of the holding in Ex parte Chambers, the court is directed to resentence him in accordance with Chambers and with the provisions of § 20-2-76, Code of Alabama 1975. 3. The circuit court shall determine, in accordance with Rule 32.7(c), Ala.R.Crim. P., if counsel should be appointed to represent the appellant at any of the proceedings mandated in 2 above. 4. Following the evidentiary hearing or other proceedings, the circuit court shall file its written findings of fact and conclusions of law along with a record of the evidence admitted and a transcript of the proceedings in this matter. Due return shall be filed with this court within 63 days from the date of this opinion.”

quoted by 1 later decision, including 716 So. 2d 231 - Dobbins v. State

Relies on Ex Parte Chambers · 500 So. 2d 1324 - Willis v. State · 549 So. 2d 112 - Blair v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1990-04-27

View the full empirical analysis of this case →

¶1

¶2Ronnie Roberts appeals from the summary denial of his petition for post-conviction relief under Rule 20, A.R.Crim.P.Temp.

¶3The appellant, in his petition filed in circuit court, sought to contest several matters which occurred when he was allegedly sentenced to two 15-year concurrent sentences as a habitual felony offender, for the alleged sale of marijuana in one cause and the alleged possession of marijuana in the second cause. The Houston County Circuit Court case numbers are to as CC-85-653 and CC-85-654 respectively. The sentencing occurred on December 18, 1985. The district attorney moved for summary dismissal of these two Rule 20 petitions, and the motion was granted by the circuit court based upon the district attorney's motion. The district attorney's motion correctly pointed out that several of the matters asserted either could or should have been raised on trial or appeal therefrom. It is herein noted that the appellant did not appeal from his original conviction. SeeWillis v. State, 500 So.2d 1324 (Ala.Crim.App. 1986).

¶4However, one of the issues which was asserted by the appellant had to do with whether or not certain non-drug related convictions were used to enhance punishment at the time of the original sentence. This raises a jurisdictional matter which could not be waived by failure to appeal. SeeEx parte Chambers, 522 So.2d 313 (Ala. 1987). It should be noted that Ex parte Chambers has been applied retroactively. Stokesv. State, 555 So.2d 254 (Ala.Cr.App. 1989).

¶5It is true that the trial court pointed out that the petition in question is a successive petition and was filed after the expiration of the two-year limitation provided for under Rule 20.2(c), A.R.Crim.P.Temp. Nevertheless, sinceEx parte Chambers was decided after this appellant's sentencing and has been given retroactive application, this court is of the opinion that the attorney general's motion for remand is well taken.

¶6This cause is therefore remanded for an evidentiary hearing to determine the factual merits of the appellant's petition. If the circuit court finds that the appellant was sentenced in violation of the principles of Ex parte Chambers, that court is further directed to resentence the appellant. See also Blairv. State, 549 So.2d 112 (Ala.Crim.App. 1988), cert. denied,549 So.2d 114 (Ala. 1988). Counsel shall be appointed for the appellant and shall be present to represent the appellant at the hearing.

¶7Following the sentencing hearing, a return to this order of remand shall be promptly filed in this court showing the testimony taken and the findings by the court and the judgment entered thereon.

¶8REMANDED WITH DIRECTIONS.

¶9All the Judges concur.

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