Opinion
CR-92-464.
July 23, 1993. Rehearing Denied September 30, 1993.
Appeal from the Circuit Court, Montgomery County, Charles Price, J.
Aljay Lockett, pro se.
James H. Evans, Atty. Gen., and David Bjurberg, Asst. Atty. Gen., for appellee.
Aljay Lockett filed a petition for writ of habeas corpus with the Montgomery Circuit Court, alleging that he had been subjected to an illegal arrest. The trial court dismissed the petition on the basis that a petition for writ of habeas corpus is not a substitute for a direct appeal or another post-conviction proceeding under Rule 32, A.R.Cr.P. However, the trial court did not give the appellant the opportunity to file a petition in the form required by 32.6(a), A.R.Crim.P. Therefore, this case is remanded to the Montgomery Circuit Court with directions that the appellant's petition be returned to him so that he can have the opportunity to file a proper Rule 32 petition as required by Rule 32.6, A.R.Crim.P. Ex parte Baker, 620 So.2d 148 (Ala.Crim.App. 1993); Drayton v. State, 600 So.2d 1088 (Ala.Crim.App. 1992); Nickerson v. State, 597 So.2d 762 (Ala.Crim.App. 1992). If the appellant files a proper petition, the prosecutor shall answer the allegations made in the petition as required by Rule 32.7(a), A.R.Crim.P.
REVERSED AND REMANDED.
All the Judges concur except Bowen, P.J., who dissents with opinion.
I adhere to my dissent in Maddox v. State, [Ms. CR 92-185, March 26, 1993] ___ So.2d ___ (Ala.Cr.App. 1993) (Bowen, P.J., dissenting):
"Just as Rule 32.7(d) (allowing summary dismissal of a petition) overrides, in some cases, the rule 32.7(a) requirement that the prosecutor file a response, see Bishop v. State, 608 So.2d 345, 347-48 (Ala. 1992), agreeing with my dissent in and reversing Bishop v. State, 592 So.2d 664, 665 (Ala.Cr.App. 1991), Rule 32.7(d) also takes precedence, in some cases, over the Rule 32.6(a) requirement that the petition be filed on the proper 'form.' Our blind adherence to the holding of Drayton v. State, 600 So.2d 1088 (Ala.Cr.App. 1992), is a literal exaltation of form over substance.
"It is ridiculous to remand this cause so that the appellant will have the opportunity to file a petition in the proper form that will be promptly dismissed. I dissent." (Emphasis in original.)
The appellant's pleading, even if treated as a Rule 32 petition, would correctly have been summarily dismissed because its only allegation, that the appellant was subjected to an illegal arrest, was precluded by Rule 32.2(a)(5) (a ground which could have been but was not raised on appeal, unless the ground for relief is jurisdictional).
An illegal arrest does not divest the circuit court of jurisdiction in a felony case. See Atwell v. State, 594 So.2d 202, 208 (Ala.Cr.App. 1991), cert. denied, 594 So.2d 214 (Ala. 1992); Coral v. State, 551 So.2d 1181, 1182 (Ala.Cr.App. 1989); Ross v. State, 529 So.2d 1074, 1078 (Ala.Cr.App. 1988) ("the [subject-matter] jurisdiction of the court, in felony cases, rests upon the utilization of a grand jury indictment or information"). The appellant is precluded from raising his alleged illegal arrest as a basis for Rule 32 relief because that ground could have been raised on direct appeal.