                                                                                 FILED
                                                                             Oct 17 2016, 9:27 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




APPELLANT PRO SE
Charles J. Davis Sr.
Carlisle, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Charles J. Davis Sr.,                                      October 17, 2016
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           03A01-1604-PL-928
        v.                                                 Appeal from the Bartholomew
                                                           Circuit Court
Jay Phelps,                                                The Honorable Stephen R.
Bartholomew County Clerk,                                  Heimann, Judge
Appellee-Respondent                                        Trial Court Cause No.
                                                           03C01-1601-PL-390



Baker, Judge.




Court of Appeals of Indiana | Opinion 03A01-1604-PL-928 | October 17, 2016                           Page 1 of 4
[1]   Charles Davis Sr. appeals the trial court’s order dismissing his complaint for

      failure to make a timely payment of filing fees. Finding that the trial court was

      statutorily required to give Davis forty-five days to make the payment, but gave

      him only thirty days, and that Davis made the required payment within forty-

      five days, we reverse and remand.


[2]   On January 19, 2016, Davis filed a complaint against Jay Phelps, the

      Bartholomew County Clerk, for an alleged violation of the Indiana Access to

      Public Records Act. Because Davis is incarcerated, he filed a motion for waiver

      of the filing fees. On March 2, 2016, the trial court entered an order denying

      Davis’s motion and requiring Davis to “pay filing fees in the sum of $17.18

      within 30 days of this Order.” Appellant’s App. p. 5. On April 5, 2016, the

      trial court entered an order dismissing the complaint because Davis had not yet

      paid the filing fees. On April 11, 2016, the trial court received Davis’s check for

      $17.18; it returned the check because the complaint had been dismissed. Davis

      now appeals.


[3]   Initially, we note that the appellee has not filed a brief in this appeal.

      Therefore, we need not develop an argument on his behalf and may reverse if

      Davis is able to establish prima facie error—error on the face of the order being

      appealed. Evans v. Thomas, 976 N.E.2d 125, 126 (Ind. Ct. App. 2012).


[4]   Indiana Code section 33-37-3-3 provides that, as a general rule, incarcerated

      persons must pay a partial filing fee. The offender may claim that there are

      special circumstances and request relief from the partial filing fee requirement.


      Court of Appeals of Indiana | Opinion 03A01-1604-PL-928 | October 17, 2016   Page 2 of 4
      Ind. Code § 33-37-3-3(c). If the trial court denies the request to waive all filing

      fees, “the court shall give written notice to the offender that the offender’s case

      will be dismissed if the partial filing fee is not paid not later than forty-five (45)

      days after the date of the order, or within an additional period that the court

      may, upon request, allow.” I.C. § 33-37-3-3(d). The plain language of this

      statute clearly indicates that, at the least, the trial court must afford the offender

      with forty-five days to pay the partial filing fee. The trial court may give the

      offender more time, but there is nothing in the statute permitting the trial court

      to afford the defendant less than forty-five days to make the payment.


[5]   In this case, the trial court gave Davis only thirty days from the date of the

      order denying his motion for waiver of the partial filing fees to make the

      required payment. Based on the plain language of the relevant statute, Davis

      should have been afforded at least forty-five days. And the trial court did, in

      fact, receive Davis’s payment on April 11, 2016—less than forty-five days after

      March 2, 2016, when the order was entered.1 Given the plain language of

      Indiana Code section 33-37-3-3(d), we reverse the trial court’s order dismissing

      Davis’s complaint and remand with instructions to Davis to re-send the filing

      fee of $17.18 within forty-five days of the certification of this decision and for

      further proceedings.




      1
        Davis also argues on appeal that the prison mailbox rule should be applied to this case and that, if that rule
      applies, his payment was timely sent even if we found that the thirty-day time limit was proper. Because we
      find that the thirty-day time limit was not proper and that his payment was received by the trial court within
      forty-five days, we will not address his arguments regarding the prison mailbox rule.

      Court of Appeals of Indiana | Opinion 03A01-1604-PL-928 | October 17, 2016                            Page 3 of 4
[6]   The judgment of the trial court is reversed and remanded with instructions to

      Davis to re-send the filing fee of $17.18 within forty-five days of the certification

      of this decision and for further proceedings.


      Vaidik, C.J., and Najam, J., concur.




      Court of Appeals of Indiana | Opinion 03A01-1604-PL-928 | October 17, 2016   Page 4 of 4
