Opinion
CR-92-0700.
December 3, 1993.
Appeal from the Escambia Circuit Court, Bradley Byrne, J.
Jerry W. Brooks, pro se.
James H. Evans, Atty. Gen., and David Bjurberg, Asst. Atty. Gen., for appellee.
This is an appeal from the denial of a petition styled "State Habeas Corpus" challenging Brooks's conviction for rape. The Circuit Court of Escambia County correctly found that the petition was in reality a Rule 32, A.R.C.P., petition and ordered that the case be transferred to the Cullman Circuit Court, the court where Brooks was convicted. The Cullman Circuit Court, while recognizing this petition as a Rule 32 petition, apparently believed that it did not have jurisdiction to entertain a petition styled as a petition for habeas corpus relief and returned the cause to the Escambia Circuit Court. The Escambia Circuit Court then denied the petition, stating that it had "no alternative but to dismiss the petition on the grounds that it [was] not filed pursuant to Rule 32.6 of the Alabama Court of Criminal Procedure and it [was] not filed in the proper venue pursuant to Rule 32.5 of said Rules." (R. 56.)
The Escambia Circuit Court acted properly in initially transferring the cause to the Cullman Circuit Court. Rule 32.5, A.R.Crim.P., provides: "Petitions filed under this rule shall be filed in and decided by the court in which the petitioner was convicted. If a petition is filed in another court, it shall be transferred to the court where the conviction occurred." Upon transfer, the Cullman Circuit Court should have returned the petition to the petitioner to allow him the opportunity to file a proper petition in accordance with Rule 32. Instead, the Cullman Circuit Court erroneously transferred this cause back to Escambia County.
Thus, this cause is remanded to the Escambia Circuit Court with directions that it again transfer this cause to the Cullman Circuit Court. The Cullman Circuit Court shall then return the petition to the appellant so that he may have the opportunity to file a proper Rule 32 petition as required by Rule 32.6(a), A.R.Crim.P. See Drayton v. State, 600 So.2d 1088 (Ala.Crim.App. 1992). In the event the petitioner fails to file a proper Rule 32 petition with the Cullman Circuit Court within a reasonable time, the Cullman Circuit Court shall dismiss this cause.
REVERSED AND REMANDED.
All the Judges concur.