Gordon v. State

BASCHAB, Presiding Judge.

On October 27, 2005, the appellant, Brad Elliott Gordon, was convicted of third-degree assault, first-degree rape, first-degree sodomy, and unauthorized use of a motor vehicle. On December 12, 2005, the trial court sentenced him, as a habitual offender, to serve concurrent terms of life in prison on the first-degree rape and first-degree sodomy convictions and ten years in prison on the unauthorized use of a motor vehicle conviction. See § 13A-5-9(b), Ala.Code 1975. It also sentenced him to serve a concurrent term of twelve months in the county jail on the third-degree assault conviction. The appellant filed a notice of appeal, but we dismissed his appeal on July 24, 2006, because he did not timely file his notice of appeal. (CR-05-0977.) On January 25, 2007, the appellant filed a Rule 32 petition, challenging his convictions. Without requiring a response from the State, the circuit court summarily denied the petition. This appeal followed.

In his petition, the appellant argued that he did not appeal his convictions through no fault of his own. The State concedes that the appellant’s argument may be meritorious. Because the appellant’s claim that he did not appeal through no fault of his own 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 contentions 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.¹

REMANDED WITH INSTRUCTIONS.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

1 . Because of our disposition of this case, we pretermit discussion of any remaining claims the appellant may raise in his brief to this court.