Opinion
CR-91-1938.
November 25, 1992.
Appeal from the Circuit Court for Mobile County, Braxton L. Kittrell, J.
Bobby Lockett, pro se
James H. Evans, Atty. Gen., and Robert Lusk, Jr., Asst. Atty. Gen., for appellee.
The appellant, Bobby Lockett, appeals from the denial of his petition for a writ of habeas corpus.
The appellant filed a petition for a writ of habeas corpus in the Circuit Court for Mobile County; however, the issues raised by the appellant are cognizable in a petition for post-conviction relief under Rule 32, A.R.Crim.P. The court summarily denied the appellant's petition.
"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."
Drayton v. State, 600 So.2d 1088, 1091 (Ala.Cr.App. 1992) (first emphasis original; second emphasis added). See also McShan v. State, 608 So.2d 449 (Ala.Cr.App. 1992). Smith v. State, 609 So.2d 449 (Ala.Cr.App. 1992).
The judgment must be reversed and the cause remanded to the Circuit Court for Mobile County with directions for that court to return the petition to the appellant and to afford him the opportunity to file a corrected petition for post-conviction relief under Rule 32, A.R.Crim.P. See Rule 32.6, A.R.Crim.P.
REVERSED AND REMANDED.
All the judges concur.