Jose Nicolas Diego v. State of Alabama
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REL 2/01/2008 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2007-2008 _________________________ CR-06-1889 _________________________ Jose Nicolas Diego v. State of Alabama Appeal from Winston Circuit Court (CC-05-137) BASCHAB, PRESIDING JUDGE On May 17, 2006, the appellant, Jose Nicolas Diego, was convicted of murder, first-degree assault, and homicide. vehicular The trial court sentenced him to serve consecutive terms of twenty-five years in prison on the murder conviction CR-06-1889 and twenty years in prison on the first-degree assault conviction. The appellant did not appeal his convictions. On December 6, 2006, he filed a Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily denied his petition. This appeal followed. In his petition, the appellant argued that he did not appeal his convictions through no fault of his own; that his convictions for both murder and vehicular homicide violate double jeopardy rendered principles; ineffective and that assistance. his The trial State specifically refute the appellant's claims. order denying the petition, the circuit counsel did not Also, in its court did not Because the appellant's specifically address the claims. claims could be meritorious, the circuit court erred in not addressing them. Accordingly, we remand this case to the circuit court for that court to make specific, written findings concerning each of the appellant's claims. of fact On remand, the circuit court may require the State to respond specifically to the appellant's contentions and/or may conduct an evidentiary hearing. On remand, the circuit 2 court shall take all CR-06-1889 necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court's written findings of fact and, if applicable, the State's response and/or a transcript of the evidentiary hearing.1 REMANDED WITH INSTRUCTIONS. McMillan, Shaw, Wise, and Welch, JJ., concur. 1 Because of our disposition of this case, we pretermit discussion of any remaining claims the appellant may raise in his brief to this court. 3
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