FINLEY v. STATE, 661 So.2d 762 (Ala.Crim.App. 1993)

FINLEY v. STATE, 661 So.2d 762 (Ala.Crim.App. 1993)
661 So.2d 762

Lewis FINLEY v. STATE.

CR-92-0636.Court of Criminal Appeals of Alabama.
August 13, 1993.

Appeal from Lee Circuit Court; James Gullage, Judge.

D. John Harrison, Auburn, for appellant.

James H. Evans, Atty. Gen., and Gilda Williams, Asst. Atty. Gen., for appellee.

MONTIEL, Judge.

The appellant, Lewis Finley was indicted for assault in the second degree, in violation of ? 13A-6-21, Code of Alabama 1975. A jury found him guilty as charged in the indictment. On January 11, 1993, the appellant was sentenced under the Habitual Felony Offender Act to 50 years’ imprisonment. The appellant filed a motion for a new trial on February 5, 1993, and raised the issue of ineffective assistance of counsel. The trial court did not rule on the appellant’s motion for a new trial. The trial court noted on the case action summary sheet, “This case is on appeal to the Alabama Court of Criminal Appeals. Therefore, no ruling made on motion for new trial.”

The State has requested that this case be remanded to the trial court for a ruling on the appellant’s motion for a new trial. This Court is of the opinion that the State’s request is due to be granted. In Melvin v. State, 583 So.2d 1365, 1367
(Ala.Crim.App. 1991), we remanded a cause for the trial court to hold a hearing on the defendant’s motion for a new trial, including a full evidentiary hearing on the issue of ineffective assistance of counsel.

This cause is hereby remanded to the circuit court with instructions that a hearing be held on the motion for a new trial, including an evidentiary hearing on the issue of alleged ineffective assistance of counsel in regard to the original trial and the sentencing of this appellant. Due return should be made to this remand within 60 days of the date of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

All Judges concur.