Biggers v. Commonwealth

WINTERSHEIMER, Judge. This appeal arises out of the same circumstances treated in 78-CA-452-MR. The purpose of the supplemental brief by the appellant is to request this Court to clarify the procedure in an appeal from an in forma pauperis order of the circuit court which grants the appellant the right to proceed on appeal in forma pauperis to a limited extent. An additional purpose, as stated by the appellant, is to bring to this Court’s attention two recent cases decided by the Kentucky Supreme Court, which required that the appellant be permitted to proceed on appeal without payment of any costs. It appears to this Court that the procedure outlined in Gabbard v. Lair, Ky., 528 S.W.2d 675 (1975), is the one that should have been used, and was used, in the present case. It appears to this Court that the proper procedure for appealing an order related to the litigant’s indigent status is abundantly clear from the Gabbard, supra, case. It is our opinion that the trial judge did not abuse his discretion in requiring the appellant in the present case to pay $100.00 per month to the circuit court clerk for the transcription of his appeal. We do not believe that the cases cited by the appellant, Salyers v. Cornett, Ky., 566 S.W.2d 418 (1978), and Tolson v. Lane, Ky., 569 S.W.2d 159 (1978), are applicable in this situation, and they do not overrule the decision in Gabbard, supra. Therefore, the judgment of the trial court is affirmed. All concur.