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12/29/95 NELSON HALL v. STATE

December 29, 1995

NELSON HALL, ALIAS
v.
STATE



Appeal from Escambia Circuit Court. (CC-92-263). Joseph Brogden, TRIAL JUDGE.

Released for Publication August 9, 1996.

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

COBB, JUDGE

We reverse the trial court's summary denial of the second Rule 32, Ala.R.Crim.P., petition filed by Nelson Hall, the appellant, challenging his March 19, 1993, conviction for possession of marijuana and his sentence of 15 years in the penitentiary.

The appellant's first petition was summarily dismissed by the circuit court on July 25, 1994. That petition alleged that he had been denied effective assistance of counsel because, he said, trial counsel had advised him that if he pleaded not guilty the prosecutor would seek the maximum sentence and because, he said, counsel only briefly discussed the case with the appellant. The petition also alleged that his guilty plea was involuntary because, he said, he was advised that his 15-year sentence would not affect his 1996 release date, but he discovered in prison that he cannot be released before 2008. The petition also alleged entrapment. We affirmed the circuit court's denial of that petition by unpublished memorandum. Hall v. State, [CR-93-2010, March 24, 1995] So. 2d (Ala.Cr.App. 1995).

The appellant alleged the following in his second Rule 32 petition:

-That he was denied effective assistance of counsel;

-That he was sentenced as a habitual felony offender without benefit of a hearing;

-That he was incorrectly sentenced under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, because, he says, he did not receive reasonable notice of the State's intent to apply the HFOA;

-That the State failed to prove the existence of a prior felony because it did not introduce a certified copy of the minute entry showing that the appellant had been represented by counsel at the time of the prior conviction; and,

-That he was not arraigned and he did not waive his right to be present at arraignment.

The State filed a motion to dismiss arguing:

-That the petition was barred by the limitations period of Rule 32.2(c) because two years has elapsed since the date of ...


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