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12/29/95 CEDRIC DALE JOHNSON v. STATE

December 29, 1995

CEDRIC DALE JOHNSON
v.
STATE



Appeal from Montgomery Circuit Court. (CC-90-2312.61). Eugene Reese, TRIAL JUDGE.

Released for Publication May 31, 1996.

Long, Judge. All Judges Concur.

The opinion of the court was delivered by: Long

LONG, JUDGE

The appellant, Cedric Dale Johnson, appeals from the trial court's summary dismissal of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his 1992 guilty plea conviction for assault in the second degree and his resulting sentence, as a habitual felony offender, of life in prison. The appellant's conviction was affirmed on direct appeal to this court, and a certificate of judgment was issued on September 30, 1992. The appellant filed the Rule 32 petition that is the subject of this appeal in the trial court on June 29, 1995.

In his petition, the appellant claims (1) that his guilty plea was invalid, because, he says, it was entered involuntarily and without knowledge of the nature of the charge and consequences of the plea; (2) that his trial counsel was ineffective; (3) that the trial court was without jurisdiction to render a judgment or to impose sentence; (4) that his sentence exceeded the maximum allowed by law; and (5) that he had newly discovered evidence that required that his conviction and sentence be vacated.

We address the appellant's five claims below.

I.

The appellant is not entitled to relief on his claim that his guilty plea was involuntarily entered; the claim is procedurally barred because his petition was filed outside the two-year limitations period provided in Rule 32.2(c), Ala.R.Crim.P. See Cantu v. State, [Ms. 1920426, April 15, 1994, as modified, April 28, 1995], 660 So. 2d 1026 (Ala. 1994).

II.

The appellant's ineffective assistance of counsel claim is procedurally barred by the two-year limitations period of Rule 32.2(c).

III.

The appellant claims that the trial court lacked jurisdiction to render a judgment or to impose sentence because, he says, the offense to which he pleaded guilty and of which he was convicted -assault in the second degree -- is not, he says, a lesser included offense of attempted murder, for which the appellant was indicted. Pursuant to a plea agreement, the state moved to amend the indictment to charge assault in the second degree instead of attempted murder, and the appellant then pleaded guilty to the charge in the indictment as amended.

A trial court lacks jurisdiction to accept a plea of guilty to an offense not encompassed by the charge in the indictment. Ross v. State, 529 So. 2d 1074 (Ala.Cr.App. 1984). Therefore, if the appellant proved that the offense of second-degree assault to which he pleaded guilty was not encompassed within the charge of attempted murder, the appellant's conviction would be ...


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