EVANS v. STATE (2000)

The appellant, Rodrick Evans, was indicted for second-degree rape, a violation of § 13A-6-62, Ala.Code 1975.   On November 17, 1994, pursuant to a negotiated agreement, he pled guilty to first-degree sexual abuse, a violation of § 13A-6-66, Ala.Code 1975, and the trial court sentenced him to serve 25 years in prison.   He did not appeal his conviction.   However, on January 4, 2000, he filed a Rule 32 petition, challenging his conviction.   Without requiring a response from the district attorney, the circuit court summarily denied the petition.   This appeal follows.

The appellant argues that he is entitled to postconviction relief because the trial court allegedly did not have jurisdiction to accept his guilty plea.   Specifically, he contends that, under the facts of the case, first-degree sexual abuse is not a lesser included offense of second-degree rape.   The attorney general acknowledges that the appellant's claim may be meritorious and requests that we remand this case to the circuit court to allow the district attorney to respond to the appellant's petition.   Accordingly, we remand this case to the circuit court with instructions that the district attorney be allowed to respond to the appellant's petition.   On remand, the circuit court shall determine, based on the district attorney's response, whether it should conduct an evidentiary hearing on the petition.   Thereafter, the circuit court shall make specific, written findings regarding the appellant's allegations.   The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.   The return to remand shall include the circuit court's written findings and a transcript of the proceedings, if any, conducted by the circuit court.

REMANDED WITH INSTRUCTIONS.^*

FOOTNOTES

FOOTNOTE.   Note from the reporter of decisions:  On June 23, 2000, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.

BASCHAB, Judge.

LONG, P.J., and McMILLAN, COBB, and FRY, JJ., concur.