Wilkins v. State
Wilkins v. State
Opinion of the Court
The appellant, Thomas Carlton Wilkins, appeals from the circuit court’s denial of his A.R.Cr.P. 32 petition and its finding that “[t]he matter is one which is inappropriate for relief because it is one ... [w]hich has already been made the basis of a post-conviction petition” and, also, that “the matter is not one for which petitioner would be or is entitled to relief on the merits.” In Wilkins’s petition, he contested the validity of his three 1990 convictions, one for first degree burglary and two for third degree burglary. These convictions rest upon Wilkins’s pleas of guilty. For these convictions, Wilkins was sentenced, as a habitual offender, to 16-year sentences, to run concurrently. The state failed to file a response to Wilkins’s petition.
Wilkins contends that the circuit court erroneously denied his Rule 32 petition without an evidentiary hearing. In response, the attorney general asserts that the instant petition was “obviously” filed outside the two-year period of limitations, Rule 32.2(c).
The attorney general also asserts that the instant petition was correctly denied because, he asserts, it is successive, Rule 32.2(b), within the guidelines delineated in Blount v. State, 572 So.2d 498 (Ala.Cr.App. 1990). This argument is supported by the attorney general’s contention that “[ajlthough it is not clear from the record whether the trial court ruled on the merits in the first petition, the second petition fails to show the grounds raised are different from the grounds in the previous petition.”
The record in this case contains three case action summaries showing that a Rule 32 petition had been previously filed, attacking Wilkins’s three burglary convictions. (We consider there to be only one prior petition, which, like the instant petition, was directed at the three convictions — not three separate petitions.) These case action summaries show only that, four days after the state had filed a motion to dismiss the petition, the circuit court denied the petition. The record does not contain all of Wilkins’s petition. It is missing the second and third pages of the required form — the pages containing the questions calling for information about any appeal of the petitioner’s original conviction and about any previous petition filed with respect to that judgment. However, Wilkins’s petition does allege that a prior petition was “[dismissed without a hearing” on June 28, 1991. Because the case action summaries of the prior petition show that that petition was denied on June 28,1991, we assume that Wilkins is referring to this petition.
The court in Blount v. State clearly held that, “before a subsequent petition can be deemed successive, a previous petition must have been considered on its merits,” id. at 500. The Blount court further ruled that, regardless of whether the subsequent petition raises the same or different grounds, “the first inquiry in determining whether a subsequent petition ... is successive is whether a prior petition was decided on its merits,” id. at 500-01. On the record before us, we cannot consider Wilkins’s first petition to have been adjudicated on its merits. Thus, the present petition cannot be barred as successive.
“In order for a petition to be procedurally barred as successive, the state must plead that the prior petition had been adjudicated on its merits. Kuk v. State, 580 So.2d 750 (Ala.Cr.App. 1991). See also Temp. Rule 20.3 [presently A.R.Cr.P. 32.3] (which states, in part, that ‘[t]he State shall have the burden of pleading any ground of preclusion’). [Footnote omitted.]”
Thus, we are left solely with the circuit court’s finding that “the matter is not one for which petitioner would be or is entitled to relief on the merits.” We do not consider the record before us to be adequate for a review of this finding, particularly where we have no record of the original convictions and where Wilkins’s has asserted over 10 pages of claims of ineffective assistance of counsel.
Accordingly, we remand this cause with directions that the state file a response in accordance with Ex parte Bice, 565 So.2d 606 (Ala. 1990), and that the circuit court then take whatever actions are necessary to submit to this court on remand specific findings of fact relating to each material issue of fact alleged by Wilkins. The circuit court shall take necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 60 days of the release of this opinion. The return to remand shall include a transcript of any remand proceedings conducted by the circuit court.
REMANDED WITH DIRECTIONS.
. The attorney general fails to reckon with the narrow application of this procedural bar, because this bar cannot foreclose the assertion of the trial court’s lack of jurisdiction or of an unauthorized sentence — allegations that have been asserted by Wilkins in the instant petition.
Reference
- Full Case Name
- Thomas Carlton Wilkins v. State.
- Cited By
- 4 cases
- Status
- Published