Opinion
CR-96-1827.
September 26, 1997.
Appeal from Mobile Circuit Court (CC-93-1345.60); Braxton Kittrell, Judge.
James Carleton, appellant, pro se.
Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
James Carleton challenges the trial court's summary dismissal of his November 25, 1996, Rule 32, Ala.R.Crim.P., petition challenging his November 21, 1993, conviction for robbery in the first degree and his 20-year sentence.
Carleton was represented by different counsel at trial and on appeal. In his petition Carleton contends that his appellate counsel was ineffective for not preserving the issue of ineffective assistance of his trial counsel for review on direct appeal. The circuit court ruled that Carleton's issue of ineffective assistance of counsel was an "issue[ ] which [is] precluded in that [it is] successive and petitioner did not raise [it] in his motion for new trial." C.R. 43.
The petition now before the court was Carleton's first opportunity to present the claim to the circuit court. See Rule 32.2(b), Ala. R. Crim. P.; Alderman v. State, 647 So.2d 28, 31 (Ala.Cr.App. 1994). The State concedes that the trial court's order was incorrect and that this case must be remanded for the circuit court to address the issue of ineffective assistance of appellate counsel. This case is remanded with directions consistent with this opinion. The trial court is ordered to take whatever measures necessary to fully and fairly consider this claim. Due return is ordered to this court within 56 days of the date of this opinion.
On May 8, 1998, on return to remand, the Court of Criminal Appeals affirmed, without opinion.
All the Judges concur.