Opinion
3 Div. 18.
April 17, 1979. Rehearing Denied May 22, 1979.
Appeal from the Circuit Court, Montgomery County, H. Randall Thomas, J.
David B. Byrne, Jr., Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
Petitioner appeals the denial of his petition for writ of error coram nobis.
In the record before us is the sworn petition for writ of error coram nobis in which petitioner alleges, among other things, that his counsel failed to call to the stand two witnesses who were material to his defense; that because of the failure to call these witnesses, O'Neal Goodman and Raymond Lowe, petitioner claims he was denied his right to effective assistance of counsel. These witnesses were in the courthouse at the time appellant was tried and convicted and were, therefore, available as witnesses. Petitioner further alleges that the failure to call these two witnesses denied him the right to present a defense.
The trial court denied the petition without a hearing. Since the petition was facially sufficient, petitioner should have been afforded a hearing on the merits upon issue being properly joined. Populus v. State, 51 Ala. App. 166, 283 So.2d 617.
The cause is hereby remanded with directions to the trial court to conduct an evidentiary hearing on all the issues raised in the petition.
The trial court is further directed that a full record be made of this hearing, which should be conducted expeditiously, and a transcript of these proceedings be promptly forwarded to this Court.
Remanded for further proceedings in accordance with this opinion.
All the Judges concur.