Madden v. State

Full title: James Farentino Madden v. State of Alabama

Court: Court of Criminal Appeals of Alabama

Date published: Jan 30, 2004

No. CR-02-1758, CR-02-1671 (Ala. Crim. App. Jan. 30, 2004)

Opinion

No. CR-02-1758, CR-02-1671.

Decided January 30, 2004.

Appeal from Lauderdale Circuit Court, CC-01-70.60.

ON RETURN TO REMAND

COBB, Judge.

On October 31, 2003, this Court remanded this cause to the circuit court for that court to determine whether it had assessed a filing fee against James Farentino Madden or whether it had granted Madden's petition to proceed in forma pauperis in pursuing his Rule 32, Ala. R. Crim. P., petition. On return to remand, the circuit court states that it has examined the record and that

"the defendant did not pay the required filing fee. The defendant did, however, file a `declaration in support of request to proceed in forma pauperis.' The information established the defendant's indigency; nevertheless, this Court did not actually grant his request to proceed in forma pauperis.

"In this Court's opinion, the defendant is indigent and should be allowed to proceed."

(Order on Return to Remand)

However, we note that, because the record does not affirmatively show that Madden either paid a filing fee or was granted in forma pauperis status before the circuit court ruled on his petition, the petition was not properly before the circuit court when it summarily dismissed Madden's petition. Ex parte St. John, 805 So.2d 684, 685-86 (Ala. 2001). That is, the circuit court's order dismissing Madden's petition was void because that court did not have jurisdiction to entertain the petition. A void judgment will not support an appeal; therefore, this Court must dismiss Madden's appeal. Id. See also Ex parte Williams, 812 So.2d 318 (Ala. 2001).

In dismissing this appeal, we point out that the Madden's Rule 32 petition still stands as filed in the circuit court with its original filing date and awaits disposition, as does his petition to proceed in forma pauperis. The circuit court should first rule on the petition to proceed in forma pauperis, and, if it grants that request, the court should then rule on the Madden's Rule 32 petition. Madden's remedy if the circuit court fails to do either of these is to file a petition for a writ of mandamus.

APPEAL DISMISSED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.