Opinion
6 Div. 253.
May 12, 1987.
Appeal from the Circuit Court, Jefferson County, Dan Reynolds, J.
Hugh W. Teat, pro se.
Don Siegelman, Atty. Gen., and Dorothy Norwood, Asst. Atty. Gen., for appellee.
The appellant, Hugh W. Teat, appeals from the trial court's summary dismissal of his petition for writ of habeas corpus. Among the contentions in his petition, we find two that merit a hearing: He is serving time for charges to which he did not enter guilty pleas, and the Department of Corrections has not obeyed an order from the circuit court to have his sentence for one of the two robbery charges to which he did plead guilty run concurrently with any sentence which he was under at the time of his pleas. "A petition for writ of habeas corpus is a proper procedure to test whether the State has properly calculated the amount of time the inmate must serve in prison." Boutwell v. State, 488 So.2d 33, 34 (Ala.Cr.App. 1986) ( quoting Mead v. State, 475 So.2d 645, 645 (Ala.Cr.App. 1985)). We have no facts from the State to refute those presented in Teat's properly verified petition; the State's motion to dismiss is not responsive to Teat's allegations. Thus, these unrefuted facts must be taken as true. Id.; Bartlette v. State, 472 So.2d 706 (Ala.Cr.App. 1985).
Accordingly, we conclude that the trial court erred in summarily dismissing Teat's petition. This judgment is reversed, and this cause is remanded with directions that an evidentiary hearing be held on the merits and allegations of Teat's petition.
REVERSED AND REMANDED.
All Judges concur.