Lawton v. State

723 So. 2d 826, 1998 Ala. Crim. App. LEXIS 247, 1998 WL 737965

Opinion

McMILLAN, Judge.

This appeal comes from the summary dismissal of the appellant’s second Rule 32, Ala.R.Crim.P., petition. This Court affirmed the trial court’s dismissal of the appellant’s first petition by an unpublished memorandum on the grounds that the petition was filed outside the limitations period. Rule 32.2(c), Ala.R.Crim.P. The appellant alleges in his second petition that the trial court was without jurisdiction to impose sentence because, he says, the jury was not sworn and because, he says, there was insufficient probable cause to support his arrest.

However, the record indicates that the appellant filed a motion in forma pauper-is with his Rule 32 petition, which motion was denied by the trial court. The trial court does not appear to have addressed the Rule 32 petition, although the appellant apparently believed that this petition was denied. Rather, the trial court denied the in forma pau-peris motion; therefore, “there is no final judgment from which the appellant may properly proceed to this Court. A writ of mandamus is the proper vehicle by which a petitioner may compel the trial court to proceed on a Rule 32 petition in which the trial court has denied the petitioner’s request to proceed in forma pauperis.” Goodwin v. State, 720 So.2d 1050 (Ala.Cr.App.1998). Therefore, this appeal is due to be dismissed.

APPEAL DISMISSED.

LONG, P.J., and COBB, BROWN, and BASCHAB, JJ., concur.