Opinion
CR 91-39.
January 17, 1992.
Appeal from the Circuit Court, Jefferson County, Bessemer Division, Dan Reynolds, J.
David S. Luker, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.
This is an appeal from the dismissal of a petition for writ of habeas corpus. The petitioner challenges his two 1983 guilty plea convictions for the unlawful possession of hashish and Diazepam on the ground that those convictions were barred by double jeopardy because his possession of both controlled substances was simultaneous. See Vogel v. State, 426 So.2d 863 (Ala.Cr.App. 1980), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983). The circuit court denied the petition because "[t]he remedy which the petitioner seeks is not available under habeas corpus motion." R. 30.
The petition for writ of habeas corpus was improperly dismissed. The petition should have been treated as a petition for post-conviction relief. Rule 32.4, A.R.Crim.P., provides: "A proceeding under this rule displaces all post-trial remedies except post-trial motions under Rule 24 and appeal. Any other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under this rule." (Emphasis added.)
Therefore, the judgment of the circuit court is reversed. This cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
All Judges concur.