HARVILLE v. STATE (1999)

This appeal arises from the summary denial of the petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P., by the appellant, Kirkpatrick Harville.   On March 20, 1997, Harville was convicted of murder and first-degree robbery.   He was sentenced to life imprisonment on the murder conviction and to 99 years' imprisonment for the robbery conviction.   His convictions were affirmed on direct appeal on March 6, 1998.   On June 23, 1999, Harville filed the petition at issue here, arguing, among other things, that his appellate counsel was ineffective.   The circuit court denied the appellant's petition without an evidentiary hearing, holding that the petition was precluded by Rule 32.2(a)(2), (3), (4), and (5), Ala.R.Crim.P., because his claims were raised at trial or on direct appeal, or because they could have been, but were not, raised at trial or on direct appeal.

Harville's argument that his appellate counsel was ineffective, however, could not have been raised at trial or on direct appeal.   As the State concedes, the present Rule 32 petition was Harville's first opportunity to raise the issue of the ineffectiveness of his appellate counsel and the circuit court's summary denial of the petition was improper.   Therefore, this case is due to be remanded to the circuit court for that court to hold an evidentiary hearing concerning the ineffectiveness of appellate counsel.   Due return shall be made to this Court within 45 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.^*

FOOTNOTES

FOOTNOTE.   Note from the reporter of decisions:  On April 21, 2000, on return to remand, the Court of Criminal Appeals affirmed, without opinion.   On May 26, 2000, that court denied rehearing, without opinion.   On October 13, 2000, the Supreme Court denied certiorari review, without opinion (1991737).

McMILLAN, Judge.

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