Ex Parte Ward

• Decision Date: 20 October 2006
• Docket Number: 1050951.
• Citation: 957 So.2d 449
• Parties: Ex parte John F. WARD. (In re State of Alabama v. John F. Ward).
• Court: Alabama Supreme Court

957 So.2d 449

Ex parte John F. WARD.

(In re State of Alabama v. John F. Ward).

1050951.

Supreme Court of Alabama.

October 20, 2006.

John F. Ward, pro se.

Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Madeline Hinson Lewis, asst. atty. gen., for respondent.

SEE, Justice.

John F. Ward petitions this Court for a writ of mandamus directing the Marion Circuit Court to set aside its order assessing a filing fee on Ward's first Rule 32, Ala. R.Crim. P., petition and to grant his request to be allowed to proceed in forma pauperis in his second Rule 32 petition. We conclude that the trial court erred in two respects: its assessment of a filing fee against Ward was untimely, and it exceeded its discretion in withholding its ruling on Ward's request to be allowed to proceed in forma pauperis on his first Rule 32 petition. Ward also asks this Court to direct the Marion Circuit Court to set aside or vacate its order revoking his probation. Because we conclude that Ward fails to show that he has a clear legal right to this relief, we deny the petition as to this claim.

I. Factual and Procedural Background

John F. Ward was convicted of two counts of felony driving under the influence in separate cases arising and prosecuted in Marion and Winston Counties. Ward pleaded guilty in both cases and received two 10-year sentences, to be served concurrently; however, both sentences were suspended, and the trial court placed Ward on supervised probation for 5 years. Ward did not file a timely notice of appeal from his convictions to the Court of Criminal Appeals. His convictions became final on May 3, 2004, following the 42-day period within which a party may seek appellate review as prescribed by Rule 4(b), Ala. R.App. P. On November 23, 2004, according to Ward's petition, the trial court revoked Ward's probation because he failed to appear for the initial "lock-down." On April 15, 2005, the Court of Criminal Appeals affirmed the revocation of Ward's probation by an unpublished memorandum. Ward v. State (No. CR-04-0378), 926 So.2d 1084 (Ala.Crim.App. 2005) (table).

According to the trial judge, Ward has been a "prolific inmate" in his "frivolous post-conviction filings." Answer of the trial judge at 9, 11. Ward has filed two appeals from his convictions for driving under the influence, a petition for the writ of mandamus in the Court of Criminal Appeals, two federal petitions for the writ of habeas corpus, and a previous Rule 32 petition. Id. at 11.

On December 12, 2005, Ward filed his second Rule 32 petition, in which he challenges the Marion County driving-under-the-influence conviction and, according to Ward, asserts "only [j]urisdictional grounds for relief."¹ With that petition, he filed a request to be allowed to proceed in forma pauperis, attaching a statement verified by the appropriate prison official demonstrating his prison-account balance for the relevant period.

On January 11, 2005, the trial court issued an order stating:

"Pursuant to Rule 32.6, paragraph (a), the Court hereby assesses the filing fee of $204 to be paid to the Clerk of the Court as a result of the defendant's prior meritless Rule 32 petition. The Court hereby orders the correctional institution having custody of [Ward] to withhold fifty percent (50%) of all monies the institution presently has on deposit for [Ward] or receives in the future for [him] until the $204 filing fee hereby assessed has been collected and paid in full.

"The Court withholds ruling on the Motion to Proceed In Forma Pauperis in the defendant's second Rule 32 Petition filed on December 12, 2005 until the filing fee in his first petition has been paid in full."

Ward filed a petition for a writ of mandamus asking the Court of Criminal Appeals to direct the trial court to set aside its order and to grant his request to proceed in forma pauperis on his second Rule 32 petition. On April 3, 2006, the Court of Criminal Appeals denied his petition, without an opinion. Ex parte Ward (No. CR 05-0787), ___ So.2d ___ (Ala.Crim.App. 2006) (table). Ward now petitions this Court seeking the same relief.

II. Standard of Review

In Ex parte Melton, 837 So.2d 819, 820-21 (Ala.2002), this Court discussed the standard of review applicable to a petition for the writ of mandamus:

"`A writ of mandamus is an extraordinary remedy, and it will be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).'

"Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)."

Further, this Court has stated: "`"[M]andamus, and not appeal, is the proper method by which to compel the circuit court to proceed on an in forma pauperis petition."'" 837 So.2d at 822 (quoting Ex parte Beavers, 779 So.2d 1223, 1224 (Ala. 2000), quoting in turn Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Crim.App.1997)).

III. Analysis

The petition before this Court presents two issues: whether the trial court exceeded its jurisdiction by assessing a filing fee on a Rule 32 petition nine months after it summarily dismissed the petition, when it was considering Ward's second Rule 32 petition, and whether the trial court exceeded its discretion by conditioning the consideration of Ward's second Rule 32 petition on his paying the filing fee associated with his first petition.

The trial judge, through the Attorney General of the State of Alabama, argues that both § 12-19-70(b), Ala.Code 1975, and Rule 32.6(a), Ala. R.Crim. P., allow the trial court to impose the filing fee on Ward. Section 12-19-70(b) provides that "[t]he docket fee may be waived initially and taxed as costs at the conclusion of the case if the court finds that payment of the fee will constitute a substantial hardship." See also Fincher v. State, 724 So.2d 87, 90 (Ala.Crim.App.1998) ("Section 12-19-70(b) ... provides that ... the docket fee of an indigent petitioner may be waived initially and then taxed as costs at the conclusion of the case."). The Alabama Rules of Criminal Procedure are more specific:

"If, upon final disposition of the petition, the court finds that all of the claims for relief are precluded for any of the reasons stated in Rule 32.2, it may assess the filing fee, or any portion thereof, and order the correctional institution having custody of the petitioner to withhold 50% of all moneys the institution then has on deposit for the petitioner, or receives in the future for the petitioner, until the filing fee that has been assessed by the court has been collected and paid in full."

Rule 32.6(a), Ala. R.Crim. P.

The State points out that neither the language of the statute nor the language of the rule imposes a definite time within which the court must order that the filing fee must be paid. Neither party has provided any authority resolving the question, nor has this Court's research located any caselaw that is on point.

The wording of the statute and the wording of the rule suggest that the time within which the trial court may make such an order is not unlimited. In determining the meaning of a statute or a court rule, this Court looks first to the plain meaning of the words as they are written. See Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 149 (Ala.2006) ("`"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says."'" (quoting other cases)); Alabama State Bar v. Caffey, 938 So.2d 942, 948 (Ala. 2006) ("`"`[T]he construction of rules of court [is] for the court which promulgated them.' ... `We start with the basic premise that words used in court rules must be given their plain meaning.'"'" (quoting other cases)). The statute provides that the court may tax the fee as costs "at the conclusion of the case," and Rule 32.6(a) states that, "upon final disposition of the petition," the court may make such an order. These phrases are clear and unambiguous.

In this case, the trial court summarily dismissed Ward's first Rule 32 petition on April 5, 2005; it did not order Ward to pay the filing fee until January 11, 2006. The conclusion of the case and the final disposition of Ward's first petition occurred when the trial court dismissed the petition. It was at that point that the trial court was authorized to impose the fee it previously had waived.² However the trial court did not do so at that time. Instead, from the timing of the order imposing the fee, it appears that the trial court imposed the fee not to punish the prior meritless petition, but to prevent what it considered to be yet another frivolous filing. The State would frame the issue in terms of a trial court's power to control frivolous postconviction filings, and a court does have the power to protect itself from abusive litigants. Procup v. Strickland, 792 F.2d 1069, 1072-73 (11th Cir.1986); Ex parte Pritchett, 832 So.2d 100, 102 (Ala.Crim.App.2002) ("the `trial court is not without power to impose restrictions'" on abusive litigants). However, "`[a]lthough trial courts, in regulating the activities of abusive litigants, may impose restrictions under appropriate circumstances, these restrictions cannot deny the litigant meaningful access to the courts.'" Ex parte Coleman, 728 So.2d 703, 707-08 (Ala.Crim.App.1998) (quoting Coleman v. State, 539 So.2d 454, 457 (Ala. Crim.App.1988)). The State argues that, given "Ward's continuous filing of meritless claims[,] the withholding of a ruling on his in forma...