Opinion
Court of Appeals No. A-11537 No. 6219
07-29-2015
FRANCIS P. XAVIER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nancy Driscoll Stroup, Palmer, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4BE-10-381 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray Jr., Judge. Appearances: Nancy Driscoll Stroup, Palmer, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d). --------
In October 2010, Francis P. Xavier filed a pro se application for post-conviction relief, accompanied by a motion for a reduced filing fee due to his indigency. This motion was granted on October 25, 2010: the court reduced Xavier's filing fee to $18.60, and the court directed him to pay this reduced fee within 30 days (i.e., by November 27, 2010).
The court actually waited nearly two years for Xavier to pay this reduced filing fee, but he never did — so at the end of July 2012, the court dismissed Xavier's petition for post-conviction relief.
When Xavier received the court's order dismissing his case, he sought reconsideration (again acting pro se). In his motion, Xavier declared that he had no money to pay the fee. The court denied this motion for reconsideration because Xavier failed to "explain why the [reduced] filing fee was not paid in 2010."
In response, Xavier filed a second motion for reconsideration. In this second motion, Xavier asserted (under oath) that he failed to pay the $18.60 filing fee because he never received the court's original order granting his motion for a reduced fee and directing him to pay the reduced fee within 30 days.
The court denied this second motion for reconsideration "[f]or the reasons stated in [its previous] order". In other words, the court failed to respond to Xavier's assertion that he did not receive the court's initial order granting his request for a reduced filing fee and setting a 30-day deadline for paying this reduced fee.
On appeal, the State acknowledges that the superior court committed error, and we agree. The superior court either should have granted relief to Xavier based on his sworn assertion that he never received the court's original order, or should at least have held a hearing to further investigate Xavier's assertion. If Xavier was indeed never notified of the superior court's decision on his motion for a reduced filing fee, and of the deadline that the court set for Xavier to pay this reduced fee, then the court should have allowed Xavier another opportunity to pay the fee and re-institute his petition for post-conviction relief.
Accordingly, the superior court's denial of Xavier's second motion for reconsideration is VACATED, and this case is remanded to the superior court for further proceedings consistent with this opinion.