Ex parte Powell
| Decision Date | 28 July 1995 |
| Citation | 674 So.2d 1258 |
| Parties | Ex parte Michael Lamar POWELL. (In re Michael Lamar Powell v. State of Alabama). 1940666. |
| Court | Alabama Supreme Court |
Michael Lamar Powell, pro se.
Jeff Sessions, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for Respondent.
On May 5, 1992, the trial court revoked Michael Lamar Powell's probation. Thereafter, Powell, pro se, filed a Rule 32, Ala.R.Crim.P., petition for relief from conviction or sentence, challenging the revocation of his probation; he also filed a request to proceed in forma pauperis, which the trial court denied. Powell appealed. The Court of Criminal Appeals dismissed the appeal with an unpublished memorandum, holding as follows:
Powell v. State, 668 So.2d 934 (Ala.Crim.App.1994) (table of decisions without opinion).
Powell's application for rehearing was overruled and his Rule 39(k), Ala.R.App.P., motion was denied, without opinion. Powell petitioned for a writ of certiorari, arguing, among other things, that the Court of Criminal Appeals had incorrectly held that his Rule 32 petition was untimely filed. We granted the writ to consider the timeliness of Powell's Rule 32 petition.
Pursuant to Rule 32.2(c), Powell had 2 years and 42 days from the date of the revocation of his probation (May 5, 1992) to file a Rule 32 petition. Although the clerk's office stamped the petition as having been filed on June 21, 1994, Powell maintains that he "actually placed [the petition] in the hands of prison officials for mailing on June 15, 1994, one day before the two (2) year limitations period expired on June 16, 1994." Therefore, he says, based on the holding in Holland v. State, 621 So.2d 373, 375 (Ala.Crim.App.1993), in which the Court of Criminal Appeals, following Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), held that "a pro se incarcerated petitioner 'files' a Rule 32 petition when he hands the petition over to prison authorities for mailing," his petition was timely filed.
In its brief in opposition to Powell's petition, the state basically concedes that Powell filed his Rule 32 petition within the limitations period and that his request to proceed in forma pauperis should have been granted:
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