Suniville Jr. v. Smith

----ooOoo----

Harry F. Suniville Jr.,
Petitioner and Appellant,

v.

James Smith, Warden,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020093-CA

F I L E D
May 9, 2002 2002 UT App 157 -----

Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
Harry F. Suniville Jr., Gunnison, Petitioner Pro Se -----

Before Judges Jackson, Bench, and Orme.

PER CURIAM:

Petitioner Suniville appeals from the trial court's denial of his request to proceed in forma pauperis. This matter is before this court on its own motion for summary disposition. The trial court, on a signed docket page,(1) denied Suniville's request on the basis that his affidavit was "facially invalid." Suniville's affidavit states a prison account balance that is too small to cover the filing fee and thus the affidavit is not facially invalid. The balance in the second account statement may indicate sufficient funds to pay the filing fee; however, the trial court did not rely on this information in its ruling.

When the affidavit is facially valid, the trial court is obligated, under Utah Code Ann. § 78-7-38 (Supp. 2001), to make an independent determination of whether the petitioner is capable of paying the filing fee. See Straley v. Halliday, 959 P.2d 645, 646 (Utah Ct. App. 1998) (requiring the trial court to obtain a copy of the inmate accounting forms rather than simply relying on the affidavit). The trial court obtained copies of the account records from the prison, but the court does not indicate whether they were considered in its ruling. Rather, it appears, the court based its ruling solely on the face of the affidavit. Therefore, the trial court's denial of the request to proceed in forma pauperis, and the resulting dismissal of the writ, is reversed and the matter is remanded to the trial court to make an independent determination of Suniville's ability to pay the filing fee.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. We urge the trial courts to use written orders, or at least signed minute entries, as final orders, rather than a signed docket. See Swenson Assocs. Architects v. State, 889 P.2d 415 (Utah 1994).