Opinion
CR 90-127.
March 29, 1991.
Appeal from the Circuit Court, Baldwin County, Thomas B. Norton, J.
Bruce Wilson, pro se.
Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for the State.
This is an appeal from the summary denial of a Rule 20, A.R.Crim.P.Temp., petition.
In his petition, the appellant raises the following grounds for relief: (1) that the indictment was insufficient to support the charge of robbery; (2) that his guilty plea was not knowingly and voluntarily made; and (3) that he was denied effective assistance of counsel.
The State moved for dismissal of the petition on the grounds that it constituted a successive petition within the meaning of Rule 20.2 A.R.Crim.P.Temp. More particularly, the State argues that the issues raised by the appellant, the sufficiency of the indictment and the voluntariness of his guilty plea, are issues which should have been raised at trial or on appeal, citing Rule 20.2(a)(2), (3), (4), and (5), A.R.Crim.P.Temp. With regard to the appellant's ineffective assistance of counsel claim, the State argues that the appellant's argument constitutes nothing more than mere allegations that his constitutional rights were violated.
The trial judge stated in his order denying the petition, "On review of the petition, it appears that the issues are precluded per Rule 20.2."
The record indicates that the appellant never appealed his conviction or filed any motion seeking post-conviction relief. Therefore, the claims raised by the appellant, other than the ineffective assistance claim and the insufficiency of the indictment claim, were procedurally barred pursuant to Rule 20.2(a)(5). However, the appellant's ineffectiveness of counsel claim is not procedurally barred and should be addressed and determined by the trial court on the merits. Moreover, because the appellant's claim as to the insufficiency of the indictment, though not specifically stated, may be jurisdictional, i.e., it may allege a failure to charge an offense, such a claim could not be precluded. See Rule 20.2(a)(5) and Rule 20.1(b). Thus, this cause is remanded to the trial court with orders to adjudicate these matters. A return shall be filed with this court within 90 days of the date of this opinion.
REMANDED WITH INSTRUCTIONS.
All the Judges concur.