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608 So. 2d 449

McShan v. State

Court of Criminal Appeals of Alabama

Decided November 13, 1992

Court of Criminal Appeals of Alabama · decided 1992-11-13

Cited by 6 later decisions — most recently March 1994

6 state decisions

Key passage — most relied on by later courts

““When a post-conviction petition seeking relief from conviction or sentence is filed with the circuit court that is not in the proper form as prescribed by Rule 32, notwithstanding the style of the petition, the court should return the petition to the petitioner to allow him to file the proper form.””

quoted by 4 later decisions, including Lockett v. State, Strother v. State

Relies on 600 So. 2d 1088 - Drayton v. State · 609 So. 2d 449 - Smith v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1992-11-13

View the full empirical analysis of this case →

¶1

¶2The appellant, George Walter McShan, Jr., appeals from the denial of his petition for a writ of habeas corpus.

¶3Although the appellant's petition was styled as a habeas corpus petition, the issues presented in the petition are cognizable in a petition for post-conviction relief filed pursuant to Rule 32.6, A.R.Crim.P. This court has stated:

¶4 "When a post-conviction petition seeking relief from conviction or sentence is filed with the circuit court that is not in the proper form as prescribed by Rule 32, notwithstanding the style of the petition, the court should return the petition *450 to the petitioner to allow him to file the proper form."

Drayton v. State, 600 So.2d 1088, 1091 (Ala.Cr.App. 1992) (emphasis in original); see also Smith v. State,609 So.2d 449 (Ala.Cr.App. 1992).

¶5We therefore reverse the judgment of the circuit court denying the petition and remand this cause to the circuit court with directions that the petition for writ of habeas corpus be returned to the appellant to allow him to file a correct petition for post-conviction relief under Rule 32.

¶6REVERSED AND REMANDED.

¶7All the Judges concur. *713

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