Opinion
No. 38,551.
October 6, 1961.
Criminal law — appeal — application for waiver of filing fee — procedure.
Petition by Robert Lee Cole, an inmate of the State Prison, for leave to appeal, without payment of fee, from an order of the Washington County District Court, Rollin G. Johnson, Judge, denying his application for a writ of injunction against the warden of the prison. Case remanded to the district court for determination of petitioner's indigence.
Robert Lee Cole, pro se, for appellant.
This matter involves an attempted appeal from an order denying a petition for a writ of injunction to restrain the prison authorities from continuing alleged disciplinary action in the prison. Petitioner now appears in this court by application for leave to file an appeal in forma pauperis without payment of the clerk's filing fee.
While we doubt that the petition contains any claim upon which relief can be granted, we will consider it in the same manner as if it had been a petition for a writ of habeas corpus. As such, if petitioner is in fact a pauper, he has a right to file an appeal from a decision of the trial court denying his petition without payment of the clerk's filing fee. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L. ed. 2d 39. However, determination of the financial status of an alleged indigent person can best be made by the trial court. In order to establish some uniform practice, we remand this case to the District Court of Washington County in order that one of the judges of the district court may determine whether petitioner is in fact unable to pay the filing fee. If it is determined that petitioner is not in possession of such funds as will permit him to pay the filing fee, the judge of the district court should thereupon waive the payment thereof and permit the filing of the appeal.
In order that the procedure may henceforth be established, petitions of this nature, whether on appeal from orders denying writs of habeas corpus or appeals from criminal convictions, should be addressed to a judge of the district court and a proper showing made of indigence. The trial court should then determine as a fact whether a petitioner is in fact unable to pay the filing fee, and, if he is, an order should be made waiving payment thereof. The judges of the district court are in much better position to make this determination than is this court. For that reason the petition should be addressed to a judge of the district court.
Remanded for further proceedings in accordance with this opinion.