Dawson v. State
| Decision Date | 02 July 1985 |
| Docket Number | 8 Div. 304 |
| Citation | 480 So.2d 18 |
| Parties | Homer Gene DAWSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Homer Gene Dawson, pro se.
Charles A. Graddick, Atty. Gen., for appellee.
This is an appeal from the denial of a pro se petition for writ of error coram nobis.
Dawson was convicted of attempted theft of property in 1983 and sentenced to fifteen years' imprisonment as a habitual offender. Dawson alleges that he was (1) denied the effective assistance of counsel, (2) denied his right to appeal, and (3) was convicted on insufficient evidence. The circuit court granted the District Attorney's motion and dismissed the petition without a hearing.
In his petition, Dawson specifically alleges that his The petition is verified. The State's motion to strike does not deny or contest this allegation of fact. Therefore, those facts as set out in the petition must be accepted as true. Ex parte State (Re: Williams v. State), 461 So.2d 1339 (Ala.1984) (Torbert, C.J., concurring specially).
The petition is meritorious on its face. Ex parte Sturdivant, 460 So.2d 1210 (Ala.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1391, 84 L.Ed.2d 781 (1985); Ex parte State (Re: Longmire v. State), 443 So.2d 1265 (Ala.1982). The improper denial of a defendant's constitutional rights to appeal or to the effective assistance of counsel on appeal constitutes proper grounds for coram nobis. Sturdivant, supra; Longmire, supra.
In his order, the circuit judge stated that he denied the petition "after consideration of the file herein and further of the jury trial over which the undersigned Judge presided." While a judge's personal knowledge may supply adequate and proper grounds for denying a coram nobis petition, the substance of that knowledge and the judge's reasons for denying the petition must be stated in the record. Lewis v. State, 435 So.2d 154 (Ala.Cr.App.1983).
This cause is remanded with directions to the circuit judge who heard the petition and who presided over Dawson's trial to set forth the reasons why Dawson's appeal was not perfected. If that circuit judge does not have such knowledge, or if such is disputed, Dawson must be afforded an evidentiary hearing at which he is given the opportunity to prove the allegations of his petition.
REMANDED WITH DIRECTIONS.
All Judges concur.
ON RETURN TO REMAND
On remand, the circuit court...
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Hill v. Jones
...(failure to timely perfect appeal by filing transcript of trial), cert. denied, 514 So.2d 1068 (1987) 13; Dawson v. State, 480 So.2d 18 (Ala.Crim.App.1985) (failure to perfect appeal); Traylor v. State, 466 So.2d 185 (Ala.Crim.App.1985) (failure to file motion for rehearing after conviction......
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...attack. In any event, a defendant cannot complain of ineffective assistance on an appeal he has waived. See, e.g., Dawson v. State, 480 So.2d 18 (Ala.Crim.App.1985); Jones v. Estelle, 584 F.2d 687, 691 (5th We have examined the record in this case to verify the petitioner's supplemental fac......
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McDaniel v. State
...counsel failed to perfect the appeal McDaniel specifically requested. Longmire v. State, 443 So.2d 1265 (Ala.1982); Dawson v. State, 480 So.2d 18 (Ala.Cr.App.1985). Consequently, this cause is remanded for an evidentiary hearing. A transcript shall be made of those proceedings and forwarded......
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Ex parte Ropchock
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