Brackin v. State

BASCHAB, Judge.

On August 29, 2001, the appellant, Rex Shane Brackin, pled guilty to first-degree burglary. The trial court sentenced him to serve a term of twenty-two years in prison. He did not appeal his conviction. On August 25, 2003, the appellant filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily dismissed his petition. This appeal followed.

The appellant argues that the trial court improperly sentenced him as a habitual offender because he did not have any prior felony convictions. The State did not specifically refute this claim. Also, in its order dismissing the petition, the circuit court did not specifically address this claim. Because the appellant’s claim that the trial court improperly sentenced him as a habitual offender could be meritorious, the circuit court erred in not addressing it. Therefore, we remand this case to the circuit court for that court to make specific, written findings of fact concerning that claim. On remand, the circuit court may require the State to respond specifically to the appellant’s contention and/or may conduct an evidentiary hearing. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and, if applicable, the State’s response and/or a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.^*

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

* Note from the reporter of decisions: On March 19, 2004, on return to remand, the Court of Criminal Appeals affirmed, without opinion.