Corn v. State , 484 So. 2d 564 ( 1986 )

TYSON, Judge.

John E. Corn, Jr. appeals from the denial by the circuit court of his petition for writ of error coram nobis without conducting an evidentiary hearing thereon.

Corn was originally convicted of several charges of robbery and sentenced to life imprisonment. He was also charged with kidnapping but he was found not guilty on this charge according to his petition filed in circuit court.

Among the grounds asserted in the petition for writ of error eoram nobis is that his original counsel was inadequate and ineffective for failing to subpoena a former police officer named Ward who had testified at the kidnapping trial but was not subpoenaed, nor did he testify at any of the robbery trials.

The appellant contends that this witness would have pointed out that the appellant was not the younger of two robbers who allegedly committed certain robberies and that he so testified at the kidnapping trial.

He also avers that a State’s witness, Mrs. McDaniel, was not able to identify the appellant and was allowed to state over objection whom she “thought” committed the robbery.

I

Because the trial court failed to conduct an evidentiary hearing on the merits of the allegations raised in the coram nobis petition filed in circuit court, this court must reverse and remand this cause for a hearing in circuit court on the merits of the allegations.

Counsel should be appointed to represent the appellant and be given an opportunity to investigate, challenge and raise such matters as may be necessary to an orderly hearing on this petition.

This action is required by Boatwright v. State, 471 So.2d 1257 (Ala.1985) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

For the reasons herein stated this cause is, hereby, reversed and remanded to the circuit court.

REVERSED AND REMANDED.

All the Judges concur.