MILLER, P. J., DOYLE, P. J., and REESE, J.
Miller, Presiding Judge.
Earl Roberts, proceeding pro se, appeals the trial
court's order denying him pauper's
status. Roberts contends that the trial court
erred by failing to hold a hearing on his affidavit of
indigence. We agree, and thus, we reverse the trial
court's order and remand the case for further
merits review of the trial court's indigence
determination is generally unauthorized, this Court may
review the trial court's procedure in making its
decision. Roberson v. State, 300 Ga. 632, 635 (III)
(797 S.E.2d 104) (2017); see also Collier v. Colfin AI GA
I, LLC, 332 Ga.App. 486, 487 (773 S.E.2d 440) (2015)
("Although a trial court's determination on the
validity of a pauper's affidavit is not normally subject
to review, the procedure used by the trial court in making an
indigence ruling is appealable.").
entered a guilty plea to numerous child molestation and
aggravated child molestation charges in 2008. Years later,
Roberts filed a motion for an out-of-time appeal, accompanied
by a sworn pauper's affidavit. When the trial court did
not rule on the motion for out-of-time appeal, Roberts filed
a notice of intent to file mandamus, in which he requested
that the trial court render a decision on his motion. This
notice was accompanied by a sworn affidavit of indigence. The
trial court construed this affidavit as a formal motion to
proceed in forma pauperis, and denied it on the basis that it
was not supported by any evidence.
Roberts claims that the trial court erred by construing his
notice of intent to file a mandamus action as an actual
mandamus action. However, the trial court's order is
limited to Roberts' affidavit of indigence, and does not
address Roberts' notice of intent to file a mandamus
action. Thus, this enumeration provides nothing for us to
Roberts also contends that the trial court erred by not
holding a hearing on his affidavit before denying his motion
to proceed in forma pauperis. We agree.
When any party, plaintiff or defendant, in any action or
proceeding held in any court in this state is unable to pay
any deposit, fee, or other cost which is normally required in
the court, if the party shall subscribe an affidavit to the
effect that because of his indigence he is unable to pay the
costs, the party shall be relieved from paying the costs and
his rights shall be the same as if he had paid the costs.
OCGA § 9-15-2 (a) (1).
Roberts filed a sworn affidavit averring that due to his
indigence, he cannot afford to pay required costs and fees.
Further, the record does not evince that the State filed a
traverse contesting the affidavit. Although the trial court
was authorized to sua sponte inquire into the truth of the
affidavit, a hearing was required if the trial court was
inclined to deny Roberts pauper's status. OCGA §
9-15-2 (b); Collier, supra, 332 Ga.App. at 441;
Boyd v. JohnGalt Holdings, LLC, 318 Ga.App.
866, 869 (2) (736 S.E.2d 459) (2012). OCGA § 9-15-2 did
not require Roberts to submit additional evidence with his
affidavit of indigence, and the affidavit alone was
sufficient to entitle Roberts to pauper's status in the
absence of a traverse and hearing. Id.
observe that in its order, the trial court referenced OCGA
§ 42-12-5. Under this statute, the trial court may
dismiss a prisoner's action if the affidavit of indigence
fails to include various necessary contents, as set forth in
OCGA § 42-12-5 (a) (1) -(3). However, this statute is a
part of the Prison Litigation Reform Act and pertains only to
civil actions, lawsuits or proceedings. See OCGA
§ 42-12-3 (1); Brown v. Crawford, 289 Ga. 722,
723 (715 S.E.2d 132) (2011). Indeed, the Prison Litigation
Reform Act specifically exempts an appeal of a criminal
proceeding from its requirements. OCGA § 42-12-3 (1).
Accordingly, to the extent that the trial court may have
applied OCGA § 42-12-5 to determine the validity of
Roberts' affidavit, that statute is inapplicable here,
and such reliance would have been in error.
the trial court's order is reversed, and this case is
remanded for the trial court to either grant Roberts
pauper's status or hold an evidentiary hearing on the
question of Roberts' indigence pursuant to OCGA §
9-15-2 before proceeding to the merits of his motion for an
out-of-time appeal. See Gruner v. Thacker, 320
Ga.App. 146, 150 (2) (739 S.E.2d 440) (2013).
reversed and case remanded.
P. J., and ...