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01/13/95 STATE v. MICHAEL MALONE

January 13, 1995

STATE
v.
MICHAEL MALONE



Appeal from Elmore Circuit Court. CV-94-190.70. John Bush, Trial Judge.

Released for Publication April 22, 1995.

Bowen, Presiding Judge. All Judges concur.

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

This is an appeal by the Alabama Department of Corrections from the order of the circuit court granting a default judgment against the State for its failure to timely amend its answer in response to an inmate's petition for writ of habeas corpus within the time set by the court.

The relevant history of this case is as follows:

June 2, 1994 : A petition for a writ of habeas corpus was filed by Michael Malone, an inmate in the Alabama prison system. Malone complained that he was not receiving retroactive incentive good time credit on his 1990 sentence of 15 years for robbery in the third degree.

July 27, 1994 : An assistant attorney general assigned to the Alabama Department of Corrections and representing the respondent, filed a motion to dismiss the petition. C.R. 18.

August 3, 1994 : Malone filed a motion, dated August 1, 1994, to strike the respondents' motion to dismiss. C.R. 23.

The circuit court filed the following order (which was dated August 2, 1994):

"The Court has reviewed the Petition and other pleadings filed in the above styled cause as well as the Respondents' Motion to Dismiss/Answer to the Petition. Upon this review, the Court finds that the Motion to Dismiss/Answer filed by the Respondents did not address the issues raised in the Petition.

"It is therefore ORDERED that the Respondent[s are] granted 30 days from this date in which to amend the Motion to Dismiss/Answer, to address the issues raised in the Petition." C.R. 27.

September 9, 1994 : Malone filed a motion seeking a default judgment. That motion included a certificate of service showing that the attorney for the respondents had been served with a copy of the motion. C.R. 48.

September 13, 1994 : The circuit court granted Malone's motion for default judgment and ordered "that petitioner be granted retroactive good time accrued from the date of his conviction for Robbery III, September 24, 1990, in Tuscaloosa ...


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