Opinion
CR-90-276.
February 1, 1991. On Return to Remand May 17, 1991.
Appeal from the Circuit Court, Jefferson County, Joseph J. Jasper, J.
William G. Veitch, Birmingham, for appellant.
Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee.
James Elbert Dubose appeals from the summary denial of his Rule 20, A.R.Crim.P.Temp., petition. He alleged in his petition that there exists newly discovered evidence which would entitle him to a new trial. He includes with his petition two affidavits from individuals who were eyewitnesses to the crime for which Dubose was charged. The state requests that this case be remanded to the circuit court so that a hearing may be held on Dubose's allegations concerning newly discovered evidence. The state further says that the trial court's reasons for the dismissal of the petition are unclear. We agree. Thus, this case is remanded to the Circuit Court for Jefferson County, for that court to determine if, in fact, the evidence meets the requirements of "newly discovered evidence" as defined in Rule 20.1(e), A.R.Crim.P.Temp. A copy of the court's findings shall be filed with this court within 90 days.
REMANDED WITH DIRECTIONS.
All the Judges concur.
ON RETURN TO REMAND
The circuit court held a hearing on appellant's Rule 20, A.R.Crim.P.Temp., alleging newly discovered evidence and returned to this court its written findings in compliance with our opinion. The trial court committed no error in denying appellant's Rule 20, A.R.Crim.P.Temp., petition (now Rule 32, A.R.Crim.P.), since the evidence is not newly discovered under Rule 20.1(e), A.R.Crim. P.Temp. The action of the trial court is affirmed.
OPINION EXTENDED; AFFIRMED.
All the Judges concur.