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01/13/95 TIMOTHY FISHER v. STATE

January 13, 1995

TIMOTHY FISHER
v.
STATE



Appeal from Jefferson Circuit Court. (CC-90-1309.60). Dan Reynolds, TRIAL JUDGE.

Released For Publication February 23, 1996.

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

MONTIEL, JUDGE

The appellant, Timothy Fisher, appeals the summary dismissal of his Rule 32, Ala. R. Crim. P., petition. The circuit Judge noted the following on the case action summary: "Petition for relief is dismissed. Defendant has new pending case. Will litigate issue of prior felony conviction at that time." (C. 23.)

Both the state and the trial court have requested that we remand this case for a clarification of this dismissal order. Therefore, we remand this cause with directions that the trial Judge take whatever action he deems necessary to properly address this petition in accordance with the provisions of Rule 32. He may summarily dismiss the petition with a proper written order pursuant to Rule 32.7(d), Ala. R. Crim. P., and Sheats v. State, 556 So. 2d 1094 (Ala. Crim. App. 1989) or he may adjudicate the petition on its merits in an evidentiary hearing pursuant to Rule 32.9, Ala. R. Crim. P. On return to remand, the circuit court shall include the record and transcript, if any, of the proceedings.

Due return shall be made to this court within 56 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

All the Judges ...


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