Summary
reversing order denying IFP status when “there has never been any more than $31.47 in the [prisoner's] account at any one time” and the filing fee was $95
Summary of this case from Cook v. Bentley (Ex parte Cook)Opinion
CR 91-330.
March 13, 1992.
Appeal from the Circuit Court, Mobile County, Robert E.L. Key, J.
Hiram Paul Lucas, pro se.
James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.
The petitioner, an inmate of the State Department of Corrections, filed a petition for post-conviction relief and a motion to proceed in forma pauperis. This appeal is from the summary denial of that motion.
The petitioner's motion to proceed in forma pauperis appears to be in proper form as required by Rule 32.6(a), A.R.Crim.P., as it is accompanied by a statement of his prison account. That statement shows that there has never been any more than $31.47 in the petitioner's account at any one time. The record shows that the forma pauperis motion was denied, but does not disclose the reason or basis for that denial.
At present, the docket fee for the filing of a petition for post-conviction relief in circuit court is $95.00. Ala. Code 1975, § 12-19-71(3) (Supp. 1991); Rule 32.6(a). From the record before this Court, it appears that the petitioner is indigent. We note that in March of 1991, the circuit court ordered that the petitioner be permitted to appeal his conviction for first degree robbery in forma pauperis. Consequently, the judgment of the circuit court denying the appellant's motion to proceed in forma pauperis on his post-conviction petition must be reversed. See Hoppins v. State, 451 So.2d 363 (Ala.Cr.App. 1982), cert. denied, 451 So.2d 365 (Ala. 1983).
This cause is remanded to the trial court with directions that the appellant be permitted to proceed with the prosecution of his petition for post-conviction relief without the payment of any docket fee. However, the circuit court may require the payment of that docket fee if the petitioner is not in fact indigent and the finding of the circuit court to that effect is made a part of the record.
REVERSED AND REMANDED.
All Judges concur.