Rivera v. State

615 So. 2d 659 (1992)

Wilson RIVERA
v.
STATE.

CR-91-1163.

Court of Criminal Appeals of Alabama.

September 18, 1992.

Wilson Rivera, pro se.

James H. Evans, Atty. Gen., and Jean Therkelsen, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, an inmate at G.K. Fountain Correctional Facility in Atmore, Alabama, filed a petition for writ of habeas corpus in the Circuit Court of Escambia County. He stated that he had pleaded guilty in Covington County to one count of theft of property in the second degree and to two counts of burglary in the third degree, for which he had been sentenced as a habitual offender to three terms of life imprisonment. He stated that he was seeking resentencing because he claimed that he had not been advised as to the minimum sentences authorized by law before entering his guilty pleas. The Circuit Court of Escambia County, on motion of the State, summarily dismissed the petition and directed the clerk of the circuit court to instruct the appellant to file his petition in Covington County pursuant to Rule 32, Ala.R.Cr.P.

The appellant contends that the trial court erred in dismissing his petition because he sought habeas corpus, not Rule 32, relief. However, because the petition sought relief from a sentence, it should have been treated as a proceeding under Rule 32. See Rules 32.4, Ala.R.Cr.P. Rule 32 petitions are properly entertained by the court in which the defendant was convicted, and a petition filed in another court should be transferred to the court in the county where the conviction occurred. See Rule 32.5, Ala.R.Cr.P.

Therefore, this cause must be remanded to the Circuit Court of Escambia County, with instructions for that court to transfer the cause to the Circuit Court of Covington County, where venue is proper. A return should be filed with this Court within 28 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

All Judges concur.