Opinion
8 Div. 493.
June 23, 1981.
Appeal from Circuit Court, Morgan County; R.L. Hundley, Judge.
Everett Stanley Lindsey, pro se.
Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.
Everett Stanley Lindsey filed a petition for Writ of Error Coram Nobis in the Circuit Court of Morgan County, Alabama, seeking to set aside a second degree murder conviction and thirty-five year sentence received on November 9, 1977 in said court. This cause was appealed to this court and affirmed in an opinion reported as Lindsey v. State, Ala.Cr.App., 367 So.2d 572 (1978), cert. denied, Ala., 367 So.2d 574 (1979). The original record filed with this court indicates that Lindsey was indigent at the time of his original trial and appeal therefrom.
In the coram nobis petition, Lindsey challenges the "trial atmosphere", specifically averring that certain key witnesses changed their testimony and that he was not able to present certain witnesses in his behalf at the time of his trial and conviction. Lindsey also avers that his trial counsel was inadequate.
The Judge, through the Circuit Clerk, directed the petitioner to file a motion seeking a determination of his status as an indigent or pay a filing fee of $37.00, citing § 12-19-70, -71, of the Code of Alabama 1975. The petitioner was given thirty days in which to file this motion and the petitioner has filed a notice of appeal and request for a transcript from the order of the circuit court.
I
We are of the opinion that this cause should be remanded to the circuit court with directions and that a hearing be held on the original Petition for Error Coram Nobis, specifically before hearing the merits of the allegations, that the circuit court determine, after the appointment of counsel in petitioner's behalf, whether or not the petitioner is an indigent as a matter of law within the meaning of the applicable Alabama statutes. The circuit court is instructed to conduct such hearing promptly and to enter an order making appropriate findings, both as to the indigent status of the appellant and if such be determined, then to proceed with a second hearing on the merits of the petitioner's allegations.
Thereafter, the trial court shall make written findings of fact and conclusions of law and enter same, together with a copy of the record of such hearing, and such shall be filed with the office of the circuit clerk. The trial court is further instructed that such hearing be conducted speedily and that the complete transcript of these proceedings under the certification of the circuit clerk then be transmitted to this court for our review.
REMANDED WITH DIRECTIONS.
All the Judges concur.