J.S.K. v. STATE (2008)

On November 11, 2004, the appellant, J.S.K., was convicted of first-degree rape, first-degree sodomy, sexual torture, and first-degree sexual abuse.   On November 18, 2004, the trial court sentenced him to serve consecutive terms of ninety-nine years in prison on the rape, sodomy, and sexual torture convictions and ten years in prison on the sexual abuse conviction.   We affirmed his convictions in an unpublished memorandum and issued a certificate of judgment on November 9, 2005.   See J.S.K. v. State (CR-04-0302), 945 So.2d 1097 (Ala.Crim.App.2005) (table).   On June 6, 2006, the appellant filed a Rule 32 petition, challenging his convictions.   After the State responded, the circuit court conducted a hearing and denied the petition.   This appeal followed.

The appellant argues that his pre-trial, trial, and appellate attorneys rendered ineffective assistance in numerous instances.   In its order denying the petition, the circuit court made general findings regarding the appellant's ineffective-assistance-of-counsel allegations.   However, it did not make specific findings of fact regarding each of the appellant's allegations.   Because the appellant's allegations could be meritorious, the circuit court erred in not specifically addressing them.

Also, the record indicates that the appellant attached numerous exhibits in support of petition.   However, it appears that the record does not include all of those exhibits.   Further, during the evidentiary hearing, the appellant introduced into evidence two documents-Petitioner's Exhibits # 1 and # 2.   However, neither of those documents is included in the record on appeal.

Accordingly, we remand this case to the circuit court for that court to make specific, written findings of fact concerning each of 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 56 days after the release of this opinion.   The return to remand shall include the circuit court's written findings of fact, all of the exhibits the appellant attached in support of his petition, and Petitioner's Exhibits # 1 and # 2.¹

REMANDED WITH INSTRUCTIONS.^*

FOOTNOTES

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

FOOTNOTE.   Note from the reporter of decisions:  On August 22, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

BASCHAB, Presiding Judge.

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