Clay v. State

McMILLAN, Presiding Judge.

The appellant, Louis Ben Clay, Jr., appeals from the trial court’s order denying his Rule 32, Ala. R.Crim. P., petition for postconviction relief.

Clay argues that the Lee Circuit Court lacked jurisdiction to rule upon his Rule 32 petition because he had not paid the filing fee and the court did not rule upon his request to proceed in forma pauperis.

There is no indication in the record that Clay paid the filing fee for his petition; therefore, this case must be remanded to the circuit court on the authority of Broadway v. State, 881 So.2d 1068 (Ala.Crim. App.2003). The circuit court is instructed to make written findings of fact regarding whether a filing fee was paid in this case or whether Clay was granted indigency status. If neither event has occurred, the circuit court’s order summarily dismissing Clay’s Rule 32 petition is a nullity, and this appeal is due to be dismissed. We preter-mit discussion of the issues raised in Clay’s petition, until this Court receives the circuit court’s order on return to remand. Due return shall be made to this Court within 42 days of the date of this opinion.

REMANDED WITH INSTRUCTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.