MENDEZ v. STATE (2008)

On December 4, 2006, pursuant to a negotiated agreement, the appellant, Fernando Nolasco Mendez, pled guilty to murder.   The trial court sentenced him to serve a term of twenty years in prison.   He did not appeal his conviction.   On August 3, 2007, the appellant filed a Rule 32 petition, challenging his conviction.   After the State responded, the circuit court summarily dismissed the petition.   This appeal followed.

In his petition, the appellant argued that he did not appeal his conviction through no fault of his own and that his counsel rendered ineffective assistance because he did not file a direct appeal.   The State did not refute these claims.   Also, the circuit court did not make any findings of fact regarding these claims.   Because these claims could be meritorious, the circuit court erred in not addressing them.

Accordingly, we remand this case to the circuit court for that court to make specific, written findings of fact concerning the appellant's claims that he did not appeal his conviction through no fault of his own and that his counsel rendered ineffective assistance because he did not file a direct appeal.   On remand, the circuit court may require the State to respond specifically to the appellant's contentions and/or may conduct an evidentiary hearing.   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 56 days after the release of this opinion.   The return to remand shall include the circuit court's written findings of fact and, if applicable, the State's response and/or a transcript of the evidentiary hearing.¹

REMANDED WITH INSTRUCTIONS.^*

FOOTNOTES

1.   Because of our disposition of this case, we pretermit discussion of the remaining claims the appellant raises in his brief to this court.

FOOTNOTE.   Note from the reporter of decisions:  On June 13, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion.   On July 27, 2008, that court denied rehearing, without opinion.   On September 12, 2008, the Supreme Court denied certiorari review, without opinion (1071366).

BASCHAB, Presiding Judge.

McMILLAN, WISE, and WELCH, JJ., concur. SHAW, J., concurs in the result.