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03/03/95 REGINALD DWAYNE JONES v. STATE

March 3, 1995

REGINALD DWAYNE JONES
v.
STATE



Appeal from Mobile Circuit Court. (CC-93-1635.60). Robert Kendall, TRIAL JUDGE.

Released For Publication February 3, 1996.

McMILLAN, Judge. All Judges concur.

The opinion of the court was delivered by: Mcmillan

McMILLAN, JUDGE

This appeal involves the summary denial of the appellant's Rule 32, Ala.R.Crim.P., petition.

The petition attacks the appellant's 1993 guilty plea to the charge of burglary in the third degree, a violation of § 13A-7-7, Code of Alabama 1975. The petition was summarily denied after the district attorney's office filed a motion to dismiss, asserting that the grounds asserted in the petition were precluded under Rule 32.2(a)(5), Ala.R.Cr.P., because they could have been, but were not, raised on direct appeal. One ground asserted by the appellant was ineffective assistance of trial counsel.

We remand this cause on the authority of Ex parte Jackson, 598 So. 2d 895 (Ala. 1992), because the ground asserting ineffective assistance of counsel was not precluded. This cause is therefore remanded to the Circuit Court of Mobile County for a hearing on the appellant's allegation that his counsel was ineffective. After the hearing, the trial court shall make written findings of fact in accordance with Rule 32.9(d), Ala.R.Cr.P. The court's finding and the transcript of the proceeding should be filed in this court within 42 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

All Judges concur.

19950303

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