Hopkins v. State

This appeal was "Submitted on Record on January 27, 1984." It is from an order dismissing a pro se petition for writ of habeas corpus. No brief has been filed by appellant. Appellee urges that the judgment should be affirmed without an opinion. Nevertheless, to avoid any future question as to the status of the proceeding, we render this brief opinion.

The pro se petition was prepared by petitioner while he was in prison at Fountain Correctional Center. While so imprisoned, he was given notice of the order dismissing the petition, and he promptly thereafter filed a pro se notice of an appeal.

The only record of the judgment or order dismissing the appeal is in the following language, "Petition for Writ of Habeas Corpus dismissed. Filed in wrong county."

No explanation is to be found in the record for the filing of the petition in the Circuit Court of Houston County, a county considerably removed from the county in which petitioner was apparently imprisoned at the time his petition was filed and at the time it was dismissed, which of itself would indicate that the dismissal of the petition was justified. However, our perusal of the pro se petition leads us to believe that it tends at least to present a contention that he was imprisoned on a conviction of a felony as to which he had not had adequate representation by counsel. In that event, his remedy would not be by a habeas corpus petition but by a petition in the nature of a petition for writ of error coram nobis, which should be filed in the court that rendered the judgment of conviction and sentence.

The designation by letter and number of the case in which defendant was convicted indicates, but does not clearly disclose, that it was in the Houston County Circuit Court.

Although all concerned other than this court are apparently informed as to what circuit court rendered the judgment of conviction and sentence, we are not, and we cannot presently obtain such information other than from sources dehors the record.

The case should be remanded to the trial court with directions that it amend its order or judgment dismissing the petition nunc pro tunc so as to explain the statement therein, "Filed in wrong county," and make due return to such order of remandment, with notice thereof to appellant and appellee. Our determination of this appeal should be suspended until receipt of the trial court's return, which we trust will not be more than sixty days from the date of the release of this opinion unless further time therefor is requested by the trial court.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REMANDED WITH DIRECTIONS.

All the Judges concur, except BOWEN, P.J., who dissents.

ON RETURN TO REMAND