Opinion
CR-90-932.
June 28, 1991.
Appeal from the Mobile Circuit Court, Edward B. McDermott, J.
Rayford Rivers, Jr., pro se.
James H. Evans, Atty. Gen., and Jean A. Therkelsen, Asst. Atty. Gen., for appellee.
Rayford Rivers, Jr., appeals from the denial of his petition seeking post-conviction relief, pursuant to the provisions of Rule 20, A.R.Crim.P.Temp.
Rivers avers that he was originally convicted in the Circuit Court of Mobile County on November 8, 1989, of attempted murder and was sentenced to 20 years' imprisonment. He states that he appealed his conviction to this court where the same was affirmed on September 24, 1990, without opinion. 572 So.2d 892. The application for rehearing was overruled on November 16, 1990, without opinion, and a motion under Rule 39(k), A.R.A.P. was also denied. There is no indication that a petition for writ of certiorari was filed in the Supreme Court of Alabama.
The appellant seeks to assert ineffective and inadequate representation by trial counsel at his original trial. This matter was denied in an order by the circuit court entered on April 9, 1991, without giving the district attorney an opportunity to answer or respond. The order simply says that the proceeding is due to be denied as the matters asserted are precluded under Alabama Rule 20.2, A.R.Crim.P.Temp.
The attorney general has moved this court to remand this cause for an evidentiary hearing, citing to this court the opinion of the Alabama Supreme Court in Ex parte Boatwright, 471 So.2d 1257 (Ala. 1985).
The attorney general also cites the opinion in Ex parte Jackson, 548 So.2d 1370 (Ala. 1989), and this court's opinion in Chaverst v. State, 517 So.2d 643 (Ala.Crim.App. 1987). These cases specifically point out that where, as here, the allegations are unrefuted, they must be taken as true.
Because of the state of the record, this matter is due to be remanded for an evidentiary hearing and for counsel to be appointed to represent the appellant.
For the reasons shown, this cause is remanded to the circuit court with instructions that counsel be appointed to represent this appellant and that a full evidentiary hearing be conducted on the merits of the allegations. Such counsel as may be appointed shall be given an opportunity to amend and add in any other matters which might be claimed.
Following such hearing, the transcript of same, together with the written findings by the trial court, shall be made and filed in this court within 90 days from date of this opinion.
REMANDED WITH DIRECTIONS FOR HEARING.
All the Judges concur.