Whitehorn v. State

From a denial of appellant’s petition for writ of habeas corpus, without an eviden-tiary hearing, this appeal follows. For the reasons outlined below, we remand this cause to the trial court, with instructions.

On September 4,1984, the appellant filed a;pro se petition for writ of habeas corpus alleging that he was denied due process of law in connection with a disciplinary hearing dated February 9, 1983.* The State filed a motion to dismiss, which alleged, in part, that the petition was a “successive petition” and was thus subject to dismissal under the authority of Bailey v. Oliver, 695 F.2d 1323 (11th Cir.1983), cert. denied, 461 U.S. 933,103 S.Ct. 2099, 77 L.Ed.2d 307 (1983). By order dated September 24, 1984, the trial court dismissed the appellant’s petition without an evidentiary hearing, and this appeal followed.

Since the State did not file any exhibits with its motion to dismiss, it is not apparent that appellant’s petition would be considered a “successive petition.” Other than the mere allegations contained in the State’s motion to dismiss, there is nothing in the record to indicate that the issues presented by the present petition have been previously considered by either the trial court or the appellate courts. For these reasons, we remand this cause to the trial court, with instructions that the trial court either enter an order which sets out those issues previously decided adversely to the appellant (by virtue of petitions for writs of habeas corpus heretofore filed by this appellant), or conduct an evidentiary hearing on the appellant’s petition and enter an order based upon testimony taken at that hearing. The trial court’s order, as well as a transcript of the evidence presented (in the event that the trial court concludes that a hearing would be appropriate), should then be forwarded to this court for further consideration. Since we are remanding this matter to the trial court for further consideration, it is not necessary at this point to address the additional issues presented by the appellant.

REMANDED WITH INSTRUCTIONS.

ON RETURN TO REMAND

McMILLAN, Judge.

This case was originally remanded to the trial court for further consideration. On *4remand, the State filed a response and the trial court entered the following order:

“The above styled petition having been considered by the court along with the response thereto filed by the State of Alabama, the court is of the opinion that the relief sought in the petition is due to be granted.

“It is therefore ORDERED, ADJUDGED AND DECREED by the Court that the disciplinary held on February 9, 1983, charging the petitioner with a violation of Rule No. 27, be expunged from the petitioner’s file by the Alabama Department of Corrections, and in addition that any and all sanctions imposed upon the petitioner as a result of said disciplinary be removed and that all benefits withheld as a result of same be restored.”

Based on the trial court’s order, it would appear that the petitioner has been afforded the full relief requested in his petition for writ of habeas corpus. Because the issues heretofore raised by way of this appeal are now moot, this appeal is dismissed.

OPINION EXTENDED; APPEAL DISMISSED.

All the Judges concur.