Opinion
No. 70-3
Decided December 9, 1970.
Criminal law — Appeal — Right to proceed in forma pauperis — Indigency — To be determined, how, when.
APPEAL from the Court of Appeals for Hamilton County.
Appellant, David D. Campbell, was convicted in the Court of Common Pleas of Hamilton County of assault with intent to kill. Court-appointed counsel, as well as an attorney employed by appellant, represented him at that proceeding. The state did not question appellant's asserted status as an indigent. Subsequently, appellant filed a motion for leave to appeal, for production of a bill of exceptions and transcript at state expense, and for leave to proceed in forma pauperis and for appointment of counsel in the Court of Appeals, First Appellate District. At this point, the state initiated its challenge to appellant's status as an indigent by filing a motion to dismiss the appeal on the ground that appellant was not a pauper insofar as payment of filing fees in the appellate court was concerned. In support of its contention the state filed an affidavit which indicated that appellant had a 50 per cent interest in real property outside this state, which his co-owner was willing to purchase for $562.71. The appellate court granted the motion to dismiss.
The appellant proceeded to this court on a motion for leave to appeal, to which the state responded with a motion to dismiss on the ground that the appellant was not a pauper for the purpose of paying filing fees in this court. In his brief in this court, appellant stated that after the state notified him that it would challenge his status as an indigent, based upon the affidavit of the co-owner of his property, he informed the state that this property was jointly owned by the appellant, his former business associate, and their wives, and that his share in this property was involved in divorce proceedings. In its brief, the state attached a certificate indicating that when the appellant filed his brief in this court, he had $85.24 in his account at the penitentiary which was available for payment of filing fees.
Mr. Melvin G. Rueger, prosecuting attorney, Mr. Leonard Kirschner and Mr. Robert K. Sachs, for appellee.
Mr. David D. Campbell, in propria persona.
The issue raised in this case is what standards should be applied in determining whether a defendant is indigent. Where indigency of a defendant has been recognized at the trial court level, may indigency summarily be denied and the appeal dismissed merely because of the ability of the defendant to pay a small filing fee and without reference to his ability to pay all or a substantial part of the costs and expenses involved in such an appeal? We conclude it may not.
The question of appellant's indigency arose for the first time in the Court of Appeals. As indicated by its judgment entry, the Court of Appeals decided that appellant was not a pauper for the purpose of paying that court's nominal filing fee, apparently because he had sufficient resources to pay the filing fee.
The Court of Appeals based its dismissal of the appeal solely on appellant's failure to pay that court's nominal filing fee.
The motion to dismiss the appeal for failure of appellant to pay this court's filing fee is overruled; the motion for leave to appeal is allowed; the judgment of the Court of Appeals is reversed; and the cause is remanded to the Court of Appeals for proceedings consistent with this opinion.
Judgment reversed.
O'NEILL, C.J., DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.
SCHNEIDER and HERBERT, JJ., concur in the judgment.