Opinion
CR-91-738.
May 29, 1992.
Appeal from the Mobile Circuit Court, Telfair J. Mashburn, J.
Tracy Howard Besselaar, pro se.
James H. Evans, Atty. Gen., and Gilda Branch Williams, Asst. Atty. Gen., for appellee.
This is an appeal from the denial of the appellant's second petition for post-conviction relief.
On May 11, 1990, the appellant filed his first petition for post-conviction relief. That petition was denied by the circuit court, and the appellant appealed. On June 14, 1990, this court affirmed the trial court's decision without opinion. After the appellant's application for rehearing was denied, he filed a petition for certiorari review in the Alabama Supreme Court, and on March 20, 1992, that court reversed and remanded the cause. Ex parte Besselaar, 600 So.2d 978 (Ala. 1992). On May 1, 1992, we remanded the case to the circuit court with directions to hold an evidentiary hearing on the petition. Besselaar v. State, 600 So.2d 980 (Ala.Cr.App. 1992).
While his appeal regarding his first petition was pending in the Alabama Supreme Court, the appellant filed a second petition for post-conviction relief in the circuit court. The circuit court denied the petition, and the appellant filed this appeal.
Because the appeal regarding the appellant's first petition was still pending in an appellate court when he filed the second petition, and because the first petition is presently pending in the circuit court, this cause is hereby dismissed based on the authority of Grant v. State, 565 So.2d 696 (Ala.Cr.App. 1990). However, the judgment of the circuit court regarding the denial of the petition in this case is "modified to provide that the dismissal shall be without prejudice to the right of the petitioner to file a new petition in the circuit court" dependent upon the disposition of the first petition. Grant, 565 So.2d at 697.
APPEAL DISMISSED.
All the Judges concur.