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Vines v. State
Citations: 74 So. 3d 98; 2010 Ala. Crim. App. LEXIS 102; 2010 WL 4380241Docket: CR-09-0759
Court: Court of Criminal Appeals of Alabama; November 5, 2010; Alabama; State Appellate Court
Kevin George Vines appeals the denial of his postconviction relief petition under Rule 32 of the Alabama Rules of Criminal Procedure. Vines was convicted in 2008 of three counts of first-degree rape and sentenced to 15 years in prison, but his appeal was dismissed due to a late notice of appeal. In his Rule 32 petition filed in July 2009, Vines claimed newly discovered evidence that could vacate his convictions. This evidence included an affidavit from Keisha Green stating that the victim, K.C., had confided that the allegations against Vines were false and were prompted by her mother’s jealousy. However, K.C. provided a conflicting affidavit affirming the truthfulness of her original testimony. The circuit court denied Vines's petition, stating that the new evidence merely impeached the victim's credibility and did not prove his innocence. The court emphasized that the alleged recantation did not establish that the crimes did not occur, and noted the victim’s consistent assertion of the assaults. Additionally, Vines sought an out-of-time appeal, claiming the late filing was not his fault, but the court found this issue had already been litigated and decided against him. The court concluded that Vines's claims did not meet the criteria for newly discovered evidence or warrant an out-of-time appeal. Failure to file the notice of appeal was not attributable to the petitioner, Vines. The circuit court's findings were contradicted by this Court's records, which showed that Vines's direct appeal was dismissed due to the untimeliness of his notice of appeal. Vines's motion for a new trial did not comply with Rule 24.4, Ala. R.Crim. P., prior to the 60-day deadline, rendering the notice of appeal filed by his attorney untimely. The State did not contest Vines's assertion that the dismissal was not his fault, and under established precedent (Dedeaux v. State), an appellant who is not at fault for a late notice is entitled to an out-of-time appeal. Since the circuit court did not specifically address Vines's claim, the case is remanded for the circuit court to determine if Vines qualifies for an out-of-time appeal due to his lack of fault. The circuit court is instructed to provide whatever relief it finds appropriate, and a return must be filed in this court within 54 days. The decision is affirmed in part, reversed in part, and remanded for further findings.