ALABAMA DEPT. OF MENTAL HEALTH AND RETARDATION EX REL. McCLOTHAN v. State

On Rehearing Ex Mero Motu

The order of dismissal issued on January 7, 2003, and the opinion on application for rehearing issued on April 25, 2003, are hereby withdrawn and the following is substituted therefor.

The Alabama Department of Mental Health and Mental Retardation ("the Department") and Tyrone McClothan appeal the trial court's ruling denying the Department's motion filed pursuant to Rule 25.8(b), Ala.R.Crim.P., seeking to release McClothan from its custody.1 In 1993, McClothan was indicted for arson in the first degree. A jury found McClothan not guilty by reason of mental disease or…