Baker v. State

• Decision Date: 31 October 2003
• Citation: 885 So.2d 241
• Parties: Donald Earl BAKER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

885 So.2d 241

Donald Earl BAKER v. STATE of Alabama.

CR-02-1758.

Court of Criminal Appeals of Alabama.

October 31, 2003.

Opinion on Return to Remand January 30, 2004.

Donald Earl Baker, pro se.

William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.

COBB, Judge.

In May 14, 2003, Donald Earl Baker filed his fourth Rule 32, Ala. R.Crim. P., petition in this case, along with an in forma pauperis declaration. After the State had responded, the circuit court summarily denied the petition on June 7, 2003. This appeal followed.

As the State and Baker point out, the record does not indicate either that the circuit court granted Baker's motion to proceed in forma pauperis or that it assessed a filing fee against him. We have recently addressed a similar situation:

"In Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997), Goldsmith filed a petition for a writ of certiorari and a request to proceed in forma pauperis in the Montgomery Circuit Court. The circuit court apparently did not rule on his request to proceed in forma pauperis. Because Goldsmith had not paid the filing fee, the circuit clerk's office did not docket the case or assign a case number to it. However, the circuit court entered an order dismissing the petition, and Goldsmith appealed the circuit court's judgment to this court. We dismissed Goldsmith's appeal, holding that,

"`in the absence of a docket fee in the amount prescribed in § 12-19-71(3), Ala.Code 1975, or an approved in forma pauperis declaration, the petition for certiorari review was never properly before the trial court. The order dismissing the petition was a nullity.'

"Goldsmith, 709 So.2d at 1352-53 (footnote omitted).

"Subsequently, in Ex parte St. John, 805 So.2d 684, 685-86 (Ala.2001), the Alabama Supreme Court stated:

"`We note in passing that the Goldsmith rule will justify dismissing an appeal of a denial or a dismissal of a Rule 32 petition for lack of jurisdiction in the [circuit] court to enter the ruling only (a) if the record on appeal affirmatively shows that the petitioner did not either pay the [circuit] court filing fee or obtain leave to proceed in forma pauperis before the [circuit] court as required by Rule 32.6(a), Ala. R.Crim. P., or (b) if, before the [circuit] court, the State has challenged a failure by the petitioner to pay the [circuit] court filing fee or to obtain the leave, or the [circuit] court has dismissed the petition on such ground, and either the State or the petitioner has raised such failure as an issue on appeal. Unless such failure is such an issue on appeal, no statute or rule requires the record on appeal to contain proof that the petitioner has paid the [circuit] court filing fee or that the [circuit] judge has granted leave to proceed in forma pauperis before the [circuit] court.'

"Finally, in Ex parte McWilliams, 812 So.2d 318 (Ala.2001), McWilliams filed a petition for a writ of habeas corpus and an `Affidavit of Substantial Hardship' in the Escambia Circuit Court. The circuit court entered an order denying the petition, and McWilliams appealed the circuit court's judgment to this court. We dismissed McWilliams's appeal on the ground that the circuit court's order denying the petition was void because the circuit court had not ruled on McWilliams's request to proceed in forma pauperis or required McWilliams to pay the filing fee. Subsequently, we entered an order taxing the docket fee for the appeal to McWilliams. McWilliams filed a petition for a writ of mandamus with this court, requesting that we set aside our order taxing the docket fee to him. We denied the petition. McWilliams then filed in the Alabama Supreme Court a petition for a writ of mandamus directing this court to set aside its order taxing him with the docket fee. In its decision, the supreme court addressed the propriety of our previous decision dismissing McWilliams's appeal and stated:

"`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 be initially waived and then taxed as costs at the conclusion of the case. See § 12-19-70(b), Ala.Code 1975; Ex parte Carter, 807 So.2d 534, 536 (Ala.2001).

"`....

"`In its unpublished memorandum dismissing McWilliams's appeal from the order of the Escambia Circuit Court purporting to deny his petition challenging his capital-murder conviction, the Court of Criminal Appeals correctly stated that the circuit court could not obtain subject-matter jurisdiction to consider a postconviction petition without first collecting a docket fee or granting a proper request to be allowed to proceed in forma pauperis."[A]bsent the payment of a filing fee [required by § 12-19-70, Ala.Code 1975,] or the granting of a request to proceed in forma pauperis the trial court fails to obtain subject matter jurisdiction to consider a postconviction petition." Carpenter v. State, 782 So.2d 848, 849 (Ala.Crim.App.2000) (citing Goldsmith v. State, 709 So.2d 1352, 1352-53 (Ala.Crim.App.1997)). See also, e.g., Ex parte Beavers, 779 So.2d 1223, 1224 (Ala.2000). Thus, the Court of Criminal Appeals correctly determined that the order of the Escambia Circuit Court purporting to deny McWilliams's postconviction petition was void. E.g., Carpenter, supra, 782 So.2d at 850; Goldsmith, 709 So.2d at 1353.' "McWilliams, 812 So.2d at 320-22 (footnote omitted).

"Based on the statements in St. John and McWilliams, the supreme court's intent regarding cases like the one before us is not clear. Nevertheless, because we cannot ascertain from the record before us whether the appellant paid the filing fee or whether the circuit court granted the appellant's request to proceed in forma pauperis, we cannot properly address the appellant's argument that the circuit court did not have jurisdiction to rule on his petition. Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings regarding whether the appellant paid the required filing fee and whether it actually granted his request to proceed in forma pauperis."

Jackson v. State, 854 So.2d 157, 159 (Ala.Crim.App.2002) (footnotes omitted).

Thus, on the authority of Jackson, we remand this cause to the...