DocketNumber： 1 Div. 946
Judges： McMillan
Filed Date： 4/23/1985
Status： Precedential
Modified Date： 10/18/2024
The appellant, Rodney Yother, was indicted by the Baldwin County Grand Jury on a charge of theft of property in the second degree, in violation of § 13A-8-4, Code of Alabama 1975. Appellant entered a plea of not guilty at his arraignment on April 19, 1982, but later changed that plea to guilty. Thereafter, appellant was sentenced to ten years in the State penitentiary-
Appellant did not pursue a direct appeal. However, on February 28, 1983, he did file a pro se petition for writ of error coram nobis, along with a request for leave to proceed in forma pauperis, and a request for appointment of counsel. The coram nobis petition was denied on March 1, 1983. On May 16, 1984, the appellant filed anoth
The appellant now argues that the circuit court relied on erroneous facts in granting the District Attorney’s motion to dismiss.
At the coram nobis hearing, the judge indicated that his decision to dismiss the coram nobis petition was based on the ground stated by the District Attorney in his motion to dismiss. The judge also stated that the ground presented by the District Attorney in support of the dismissal was the appellant’s voluntary dismissal of an earlier coram nobis petition. After conducting a careful search of the record, we find that the District Attorney’s motion to dismiss and the grounds stated in support of that motion do not appear in the record before us. The record does not affirmatively reflect that the first coram nobis petition was voluntarily dismissed by the appellant.
At the suggestion of the State, we find it necessary to remand this proceeding to the Circuit Court of Baldwin County with directions to conduct a full hearing on appellant’s petition for writ of error coram nobis and to record testimony and make findings of fact on the issues outlined in appellant’s coram nobis petition.
REVERSED AND REMANDED.