
    James Farentino MADDEN v. STATE of Alabama.
    CR-02-1671.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2003.
    On Return to Remand Jan. 30, 2004.
    
      James Farentino Madden, pro se.
    William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   COBB, Judge.

On January 7, 2001, James Farentino Madden was convicted of first-degree theft of property and was sentenced, as a habitual offender, to 30 years in prison. On appeal, this Court affirmed his conviction and sentence in an unpublished memorandum. Madden v. State (No. CR-00-2498), 837 So.2d 875 (Ala.Crim.App.2002) (table). The certificate of judgment was issued on June 18, 2002.

On March 31, 2003, Madden filed a Rule 32, Ala. R.Crim. P., petition. After the State responded, the circuit court summarily dismissed the petition on June 10, 2003. This appeal followed.

In his petition, Madden claimed that appellate counsel rendered ineffective assistance by failing to argue on appeal that trial counsel was ineffective for failing to object to the trial court’s jury instruction “on intent to deprive or the lack of the statutory definition”; for failing to argue on appeal that the trial court erred by “not obtaining waiver of right to counsel by [Madden] for him to proceed pro se”; for “[withdrawing on direct appeal”; for not filing a reply brief on direct appeal; for not filing an application for rehearing in this Court; and for not promptly notifying Madden that his conviction had been affirmed on appeal. (C. 9.)

On appeal, Madden argues, among other things, that the circuit court erroneously failed either to grant his motion to proceed in forma pauperis or to order him to pay a filing fee. We note that the record does not indicate any ruling on Madden’s motion or the trial court’s collection of any fee. We have recently addressed a similar claim:

“In Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997), Goldsmith filed a petition for a writ of certiorari and a request to proceed in forma pauperis in the Montgomery Circuit Court. The circuit court apparently did not rule on his request to proceed in forma pauper-is. Because Goldsmith had not paid the filing fee, the circuit clerk’s office did not docket the case or assign a case number to it. However, the circuit court entered an order dismissing the petition, and Goldsmith appealed the circuit court’s judgment to this court. We dismissed Goldsmith’s appeal, holding that,
“ ‘in the absence of a docket fee in the amount prescribed in § 12-19-71(3), Ala.Code 1975, or an approved in for-ma pauperis declaration, the petition for certiorari review was never properly before the trial court. The order dismissing the petition was a nullity.’
“Goldsmith, 709 So.2d at 1352-53 (footnote omitted).
“Subsequently, in Ex parte St. John, 805 So.2d 684, 685-86 (Ala.2001), the Alabama Supreme Court stated:
“ ‘We note in passing that the Goldsmith rule will justify dismissing an appeal of a denial or a dismissal of a Rule 32 petition for lack of jurisdiction in the [circuit] court to enter the ruling only (a) if the record on appeal affirmatively shows that the petitioner did not either pay the [circuit] court filing fee or obtain leave to proceed in forma pauperis before the [circuit] court as required by Rule 32.6(a), Ala. R.Crim. P., or (b) if, before the [circuit] court, the State has challenged a failure by the petitioner to pay the [circuit] court filing fee or to obtain the leave, or the [circuit] court has dismissed the petition on such ground, and either the State or the petitioner has raised such failure as an issue on appeal. Unless such failure is such an issue on appeal, no statute or rule requires the record on appeal to contain proof that the petitioner has paid the [circuit] court filing fee or that the [circuit] judge has granted leave to proceed in forma pauperis before the [circuit] court.’
“Finally, in Ex parte McWilliams, 812 So.2d 318 (Ala.2001), McWilliams filed a petition for a writ of habeas corpus and an ‘Affidavit of Substantial Hardship’ in the Escambia Circuit Court. The circuit court entered an order denying the petition, and McWilliams appealed the circuit court’s judgment to this court. We dismissed McWilliams’s appeal on the ground that the circuit court's order denying the petition was void because the. circuit court had not ruled on McWil-liams’s request to proceed in forma pau-peris or required McWilliams to pay the filing fee. Subsequently, we entered an order taxing the docket fee for the appeal to McWilliams. McWilliams filed a petition for a writ of mandamus with this court, requesting that we set aside our order taxing the docket fee to him. We denied the petition. McWilliams then filed in the Alabama Supreme Court a petition for a writ of mandamus directing this court to set aside its order taxing him with the docket fee. In its decision, the supreme court addressed the propriety of our previous decision dismissing McWilliams’s appeal and stated:
“ ‘Section 12-19-70, Ala.Code 1975, requires that a circuit court collect the docket fee for a postconviction petition at the time the petition is filed, unless the circuit court approves a verified statement of substantial hardship, in which event the docket fee may be initially waived and then taxed as costs at the conclusion of the case. See § 12 — 19—70(b), Ala.Code 1975; Ex parte Carter, 807 So.2d 534, 536 (Ala.2001).
“ ‘In its unpublished memorandum dismissing McWilliams’s appeal from the order of the Escambia Circuit Court purporting to deny his petition challenging his capital-murder conviction, the Court of Criminal Appeals correctly'stated that the circuit court could not obtain subject-matter jurisdiction to consider a postconviction petition without first collecting a docket fee or granting a proper request to be allowed to proceed in forma pau-peris. “[A]bsent the payment of a filing fee [required by § 12-19-70, Ala.Code 1975,] or the granting of a request to proceed in forma pauperis the trial court fails to obtain subject matter jurisdiction to consider a post-conviction petition.” Carpenter v. State, 782 So.2d 848, 849 (Ala.Crim.App.2000) (citing Goldsmith v. State, 709 So.2d 1352, 1352-53 (Ala.Crim.App.1997)). See also, e.g., Ex parte Beavers, 779 So.2d 1223, 1224 (Ala.2000). Thus, the Court of Criminal Appeals correctly determined that the order, of the Escambia Circuit Court purporting to deny McWilliams’s post-•conviction petition was void. E.g., Carpenter, supra, 782 So.2d, at 850; Goldsmith, 709 So.2d at 1353.’
“McWilliams, 812 So.2d at 320-22 (footnote omitted).
“Based on the statements in St. John and McWilliams, the supreme court’s intent regarding cases like the one before us is not clear. Nevertheless, because we cannot ascertain from the record before us whether the appellant paid the filing fee or whether the circuit court granted the appellant’s request to proceed in forma pauperis, we cannot properly address the appellant’s argument that the circuit court did not have jurisdiction to rule on his petition. Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings regarding whether the appellant paid the required filing fee and whether it actually granted his request to proceed in forma pauperis.”

Jackson v. State, 854 So.2d 157, 159 (Ala.Crim.App.2002) (footnotes omitted).

Thus, on the authority of Jackson, we remand this cause to the circuit court for it to “make specific, written findings regarding whether the appellant paid the required filing fee and whether it actually granted his request to proceed in forma pauperis.” Jackson, 854 So.2d at 159. Due return to this court shall be made within 42 days of the release of this opinion, and the return to remand shall include the circuit court’s written findings.

REMANDED WITH DIRECTIONS.

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

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 fée 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 informa pauperis.’ The information established the defendant’s in-digency; nevertheless, this Court did not actually grant his request to proceed informa 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.  