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03/24/95 LEON CARMICHAEL v. STATE

March 24, 1995

LEON CARMICHAEL, JR.
v.
STATE



Appeal from Montgomery Circuit Court. (CC-91-1633.60 and 92-223.60). Eugene Reese, TRIAL JUDGE.

Released For Publication February 23, 1996.

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

COBB, JUDGE

This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

Leon Carmichael, Jr., filed a Rule 32, Ala. R. Crim. P., petition with the Montgomery Circuit Court challenging his convictions for murder and possession of an unlawful substance. The trial court denied the petition saying it was successive.

"The court in Blount v. State, [572 So. 2d 498 (Ala. Crim. App. 1990)] clearly held that, 'before a subsequent petition can be deemed successive, a previous petition must have been considered on its merits,' id. at 500. The Blount court further ruled that, regardless of whether the subsequent petition raises the same or different grounds, 'the first inquiry in determining whether a subsequent petition . . . is successive is whether a prior petition was decided on its merits,' id. at 500-01."

Wilkins v. State, 629 So. 2d 705 (Ala. Crim. App. 1993). The State in its response to the petition did not argue that the prior petition had been decided on its merits and the trial Judge did not so find in his order denying the current petition. There is nothing before this court from which we can determine whether the prior petition was decided on the merits.

Therefore, this case is remanded with directions that the State file a response in compliance with Ex parte Rice, 565 So. 2d 606 (Ala. 1990), and that the circuit court then take whatever actions are necessary to submit to this court on remand specific findings of fact relating to each material issue of fact alleged by the appellant. Wilkins. The trial court shall take necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 70 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the trial court.

REMANDED WITH DIRECTIONS.

All the Judges ...


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