Summary
In Dozier we cited Hurth and Beavers and three similar opinions of the Court of Criminal Appeals -- Ferrell, Coleman, and Malone.
Summary of this case from State v. Robey (In re Robey)Opinion
No. 1001448.
Decided February 22, 2002.
Appeal Calhoun Circuit Court, (CC-93-525.62); Court of Criminal Appeals, (CR-00-1283).
Artie Glenn Dozier, pro se.
Bill Pryor, atty. gen., and E. Vincent Carroll, deputy atty. gen., for respondent.
Artie Glenn Dozier, a state inmate incarcerated in the St. Clair Correctional Facility in Springville, petitioned the Court of Criminal Appeals for a writ of mandamus directing the Calhoun Circuit Court to allow him to proceed in forma pauperis on a petition he filed pursuant to Rule 32, Ala.R.Crim.P. The Court of Criminal Appeals denied his mandamus petition. Dozier then filed a similar mandamus petition in this Court. Because we conclude that the circuit court abused its discretion in denying Dozier's request, we grant the petition and issue the writ.
On August 17, 1993, Dozier was convicted in the Calhoun Circuit Court of robbery in the first degree. He was sentenced as a habitual offender to life imprisonment without parole. The Court of Criminal Appeals affirmed Dozier's conviction and sentence, by an unpublished memorandum, on June 17, 1994.Dozier v. State (No. CR-92-1962), 658 So.2d 912 (Ala.Crim.App. 1994) (table). That court issued a certificate of final judgment on November 23, 1994.
On August 21, 2000, Dozier filed a Rule 32 petition in the Calhoun Circuit Court, challenging his 1993 robbery conviction. Dozier sought leave to waive the docket fee required by § 12-19-70, Ala. Code 1975, and requested that he be allowed to proceed on his petition in forma pauperis. In support of his request, Dozier submitted a certificate executed by an authorized officer of the correctional facility in which he was incarcerated, which stated that Dozier had a zero balance in his prison account at the time he filed his Rule 32 petition.
The August 21, 2000, petition was Dozier's third postconviction petition challenging the robbery conviction.
Section 12-19-70, Ala. Code 1975, requires that a circuit court collect the docket fee for a postconviction petition at the time the petition is filed, unless the circuit court approves a verified statement of substantial hardship, in which event the docket fee may initially be waived and then taxed as costs at the conclusion of the case. See § 12-19-70(b), Ala. Code 1975.
The circuit court issued an order denying Dozier's request to be allowed to proceed in forma pauperis. It is apparent from that order that the circuit court did not deny Dozier's request to proceed in forma pauperis based on Dozier's financial status, but rather it denied the request based on its findings that Dozier's Rule 32 petition was successive, that it contained claims that could have been, but were not, raised at trial and on direct appeal, and that no material issue of fact or law existed that entitled Dozier to relief under Rule 32. See Rules 32.2(b), 32.2(a)(2) through (5), and 32.7(d), Ala.R.Crim.P. Dozier appealed the circuit court's denial of his request to be allowed to proceed in forma pauperis to the Court of Criminal Appeals. That court dismissed Dozier's appeal on March 20, 2001, without an opinion, declaring that the appeal was from "a nonappealable order." Dozier v. State 821 So.2d 1049 (Ala.Crim.App. 2001) (table).
On March 29, 2001, Dozier filed a petition for a writ of mandamus in the Court of Criminal Appeals, asking that court to direct the Calhoun Circuit Court to grant his request to be allowed to proceed in forma pauperis on his Rule 32 petition. The Court of Criminal Appeals denied Dozier's mandamus petition, without an opinion, on May 2, 2001. Ex parte Dozier (No. CR-00-1283), ___ So.2d ___ (Ala.Crim.App. 2001) (table). On May 11, 2001, Dozier petitioned this Court for a writ of mandamus, seeking to have this Court direct the circuit court to grant his request to be allowed to proceed in forma pauperis. See Rule 21(e), Ala.R.App.P.
"`[M]andamus, and not appeal, is the proper method by which to compel the circuit court to proceed on an in forma pauperis petition.' Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Crim.App. 1997). `To impose any financial consideration between an indigent prisoner and the exercise of his right to sue for his liberty is to deny that prisoner equal protection of the laws.' Hoppins v. State, 451 So.2d 363, 364 (Ala.Crim.App. 1982) (citing Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961)). See also Ex parte Hurth, 764 So.2d 1272 (Ala. 2000). `[I]n order to prevent "effectively foreclosed access" [to the courts], indigent prisoners must be allowed to file appeals and habeas corpus petitions
without payment of docket fees.' Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)."
Ex parte Beavers, 779 So.2d 1223, 1224 (Ala. 2000).
At the time Dozier filed his Rule 32 petition in the Calhoun Circuit Court, the docket fee for filing a postconviction petition was $140. § 12-19-71(a)(3), Ala. Code 1975. "`Indigent' is defined in the Alabama Rules of Criminal Procedure as `a person who is financially unable to pay for his or her defense.' Rule 6.3(a), Ala.R.Crim.P." Ex parte Ferrell, 819 So.2d 83, 84 (Ala.Crim.App. 2001). As noted above, the certificate accompanying Dozier's request that he be allowed to proceedin forma pauperis indicated that he had a zero balance in his prison account when he filed his Rule 32 petition. Thus, the facts before this Court indicate that Dozier was indigent. See, e.g., Ex parte Beavers, 779 So.2d at 1224-25; Ex parte Hurth, 764 So.2d 1272, 1274 (Ala. 2000); Ex parte Ferrell, 819 So.2d at 84; Ex parte Coleman, 728 So.2d 703, 704-05 (Ala.Crim.App. 1998); and Malone v. State, 687 So.2d 218, 219 (Ala.Crim.App. 1996). Nothing before this Court indicates that Dozier's financial status has changed since he filed his petition.
Effective October 1, 2000, the docket fee for cases filed in the circuit court was increased to $145. See § 12-19-71(b), Ala. Code 1975.
We conclude that the circuit court erred when it denied Dozier's request to be allowed to proceed in forma pauperis. Furthermore, the circuit court erred in basing its denial of Dozier's request on its findings that Dozier's Rule 32 petition was procedurally barred and that it lacked merit, rather than on a consideration of Dozier's financial status.
For the reasons stated above, the circuit court is directed to grant Dozier's request to be allowed to proceed in forma pauperis and is directed to permit Dozier to proceed with his Rule 32 petition without paying a docket fee.
PETITION GRANTED; WRIT ISSUED.
Houston, See, Lyons, Johnstone, and Harwood, JJ., concur. Woodall, J., concurs in the result.
Moore, C.J., and Stuart, J., dissent.
I respectfully dissent. The only relief the petitioner requests in his petition for a writ of mandamus is for "this court to issue an order to the trial court judge causing him to grant the petitioner in forma pauperis status and allow the petitioner to appeal the circuit court's adverse judgment upon the petitioner's jurisdictional ground raised." The majority opinion notes the following relevant facts:
"On August 21, 2000, Dozier filed a Rule 32 petition in the Calhoun Circuit Court, challenging his 1993 robbery conviction. Dozier sought leave to waive the docket fee required by § 12-19-70, Ala. Code 1975, and requested that he be allowed to proceed on his petition in forma pauperis. In support of his request, Dozier submitted a certificate executed by an authorized officer of the correctional facility in which he was incarcerated, which stated that Dozier had a zero balance in his prison account at the time he filed his Rule 32 petition.
"The circuit court issued an order denying Dozier's request to be allowed to proceed in forma pauperis."
827 So.2d at 775 (footnotes omitted).
The opinion further notes that "[a]t the time Dozier filed his Rule 32 petition in the Calhoun Circuit Court, the docket fee for filing a postconviction petition was $140" and that "the certificate accompanying Dozier's request that he be allowed to proceed in forma pauperis indicated that he had a zero balance in his prison account when he filed his Rule 32 petition." The majority opinion concludes that the trial court erred when it denied Dozier's request to be allowed to proceed in forma pauperis and directs the circuit court to grant Dozier's request to be allowed to proceed in forma pauperis.
Rule 32.6(a), Ala.R.Crim.P., provides:
"(a) Form, Filing, and Service of Petition. A proceeding under this rule is commenced by filing a petition, verified by the petitioner or petitioner's attorney, with the clerk of the court. A petition may be filed at any time after entry of judgment and sentence (subject to the provisions of Rule 32.2(c)). The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form. The petition shall be accompanied by two copies thereof. It shall also be accompanied by the filing fee prescribed by law or rule in civil cases in circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis, in which event the fee shall be waived. If the petitioner desires to prosecute the petition in forma pauperis, he shall file the In Forma Pauperis Declaration at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit in any account in the institution, which certificate may be considered by the court in acting upon his application for leave to proceed in forma pauperis. Upon receipt of the petition and the filing fee, or an order granting leave to the petitioner to proceed in forma pauperis, the clerk shall file the petition and promptly send a copy to the district attorney (or, in the case of a petition filed in the municipal court, to the municipal prosecutor)."
Additionally, the Appendix to Rule 32, Ala.R.Crim.P., provides, in pertinent part:
"(6) Upon receipt of the appropriate fee, your petition will be filed if it is in proper order. If you do not know the amount of the fee, ask the librarian or other authorized officer of the corrections institution where you are confined to give you this information.
"(7) If you do not have the necessary fee, you may request permission to proceed in forma pauperis, in which event you must complete the declaration at the end of this form, setting forth information establishing your inability to pay the fees and costs or give security therefor. Your declaration must include financial information relating to the twelve (12) months preceding the filing of this petition.
"If you wish to proceed in forma pauperis, you must have an authorized officer at the corrections institution where you are confined complete the certificate at the end of your in forma pauperis declaration as to the amount of money and securities on deposit to your credit in any account in the institution."
(Emphasis on first "must" original; other emphasis added.) According to the record before this Court, the petitioner's in forma pauperis declaration filed with circuit court in connection with his Rule 32 petition did not have attached his "Prisoner Monies On Account Statement" for the preceding 12 months. That declaration does, however, contain negative responses to each question asking if the petitioner had received any monies during the preceding 12 months and certified a zero balanceon the date the form was executed by the prison-accounts clerk. The petitioner failed to comply with Rule 32, Ala.R.Crim.P.; therefore, the trial court properly denied his petition for in forma pauperis status and the Alabama Court of Criminal Appeals properly denied his petition for a writ of mandamus. This Court should likewise deny the petitioner's request for a writ of mandamus directing the trial court to grant his petition for leave to proceed in forma pauperis.
These responses were not accurate, according to the materials before this Court in this mandamus proceeding, as hereinafter explained.
It is interesting to note that in the in forma pauperis declaration the petitioner executed on May 9, 2001, and filed with this Court on May 15, 2001, the petitioner again responds negatively to such questions as "[h]ave you received within the past twelve months any money from any of the following sources? Business, profession, or other form of self-employment? Rent payments, interest, or dividends? Gifts or inheritances? Any other sources?" (emphasis added). Attached to this declaration, however, is the required "Prisoner Monies on Account Statement" for the preceding 12 months. The fee for filing a petition for a writ of mandamus in the Supreme Court of Alabama is $50. In the month preceding the filing of this petition, specifically during the period April 5-16, 2001, the petitioner spent $110.39 on canteen sales, which reduced the balance in his account to 13 cents. That same statement shows that in the two months before filing his Rule 32 petition in the circuit court the petitioner spent $100.15 on canteen sales and $3.00 on a medical copayment, reducing his account balance to zero immediately before the filing of that petition.
Trial judges across this state are entitled to, and should, demand that petitioners comply with the requirements for requesting leave to proceedin forma pauperis. They should carefully scrutinize the documentation submitted by inmates in light of the fact that all of their basic needs — food, shelter, clothing, hygienic necessities — are provided by the taxpayers of the State of Alabama. When the record supports the trial court's denial of in forma pauperis status, an appellate court should uphold that ruling.
The trial court's denial of in forma pauperis status in this case was proper. The petition for the writ of mandamus should be denied. Therefore, I must dissent.