JAMES O'BRIEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1997-02-07
No. 96-3527
PETERSON, C.J., and HARRIS and ANTOON, JJ., concur.
689 So. 2d 336 Florida District Court of Appeal, Fifth District (1997) Positive Treatment
Cited by 68 cases

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Holding

The court held that the defendant is prohibited from filing any further pro se pleadings concerning his prior convictions due to abuse of the judicial system.


Headnotes

[1] A court may prohibit a litigant from filing further pro se pleadings concerning specific convictions and sentences to conserve judicial resources and enforce procedural b…

[2] The Criminal Appeal Reform Act mandates strict enforcement of collateral review terms, conditions, and procedural bars.

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Facts & Procedural History

The defendant, James O'Brien, has a history of filing numerous post-conviction motions and appeals related to his 1976 and 1980 convictions. These fil…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The defendant James O’Brien, no stranger to this court, appeals the dismissal of his latest 3.850 motion. Once again he is attacking his 1976 convictions and sentences for burglary, conspiracy to commit burglary, attempted murder, aggravated assault, and possession of a firearm by a convicted felon, and his 1980 conviction and re-sentencing upon remand in the same case for the second-degree murder of a co-felon. O’Brien v. State, sub nom., Marcum v. State, 379 So. 2d 974 (Fla. 5th DCA 1979), cert. denied, 389 So. 2d 1112 (Fla.1980).

In 1986, O’Brien filed a motion for post-conviction relief which was denied. In 1989, he filed a motion to correct an illegal sentence which was denied. He appealed. This court affirmed the denial per curiam without opinion. O’Brien v. State, 575 So. 2d 668 (Fla. 5th DCA 1991). He filed a petition for a writ of habeas corpus in. the trial court. The petition was denied, and this court affirmed the denial per curiam without opinion. O’Brien v. State, 595 So. 2d 59 (Fla. 5th DCA 1992). He also appealed a denial of his motion for appointment of counsel in his attempt to transfer to the Federal Corrections system. This court affirmed per cu-riam without opinion. O’Brien v. State, 640 So. 2d 1124 (Fla. 5th DCA), dismissed, 641 So .2d 1346 (Fla.1994). He has filed other Rule 3.850 motions which have been denied and affirmed on appeal. O’Brien v. State, 666 So. 2d 157 (Fla. 5th DCA 1995); O’Brien v. State, 680 So. 2d 437 (Fla. 5th DCA 1996). He filed what he designated as a “Motion for Relief of Court Order_” It was denied. He appealed. This court affirmed the denial per curiam without opinion. O’Brien v. State, No. 95-3266 (Fla. 5th DCA Dec. 3, 1996). He moved for rehearing, and that motion is still pending. By unpublished order, this court also just denied his petition for a writ of habeas corpus seeking a belated appeal. O’Brien v. State, No. 96-3388 (Fla. 5th DCA Jan. 30, 1997). O’Brien has also unsuccessfully challenged his convictions and sentences in the federal courts.

Like other recent defendants, O’Brien seems to have no concept of the “one bite at the apple” rule or the “enough is enough” rule.1 The remarks of this Court in recent eases are equally applicable to this case: Cassady v. State, 683 So. 2d 1194, 1194 (Fla. 5th DCA 1996) (the defendant “appears to have exhausted his post-conviction remedies and has certainly exhausted us in doing so”), and Johnson v. State, 680 So. 2d 1101, 1102 (Fla. 5th DCA 1996) (the defendant “seems not to have heard our message that a defendant is entitled to but one ‘bite at the apple’ or that ‘enough is enough.’... Even Herman Melville had to come to an ending in Moby Dick.”), and of course Isley v. State, 652 So. 2d 409, 410-11 (Fla. 5th DCA 1995) (“enough is enough”).

We direct post-conviction litigants to the Criminal Appeal Reform Act of 1996, Chapter 96-248. This Act added section 924.051(9), Florida Statutes, which provides that it is the intent of the Legislature that the terms and conditions of collateral review and procedural bars to collateral review shall be strictly enforced. Further, a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding or appeal in any court is subject to having all or any part of his or her gain time forfeited. Section 944.28(2)(a), Florida Statutes. At this point, O’Brien is filing documents faster than this court can dispose of them. Clearly, the Legislature is trying to cut down on exactly this sort of behavior. In accordance with the Criminal Appeal Reform Act, and in order to conserve our judicial resources, we prohibit Mr. O’Brien from filing any further pro se pleadings with this court concerning his 1976/1980 convictions and sentences.

AFFIRMED.

PETERSON, C.J., and HARRIS and ANTOON, JJ., concur. . See, e.g., Harris v. State, 674 So. 2d 925, 925 (Fla. 5th DCA 1996) (identical petition for habeas coipus denied as abuse of process); Holmes v. State, 669 So. 2d 360, 361 (Fla. 5th DCA 1996) ("to prevent frivolous petitions for extraordinary relief from unsettling the fair administration of justice, the Court has a duty to deny in forma pauperis status to individuals who have abused the system”); Lockett v. State, 657 So. 2d 38, 39 (Fla. 5th DCA 1995) (Sharp, W., J., concurring specially) (to forestall defendant from filing a fifth or sixth rule 3.850 motion, court should designate defendant's motion an abuse of process); Leone v. State, 657 So. 2d 26, 27 (Fla. 5th DCA 1995) (petition is abuse of process; arguments have little or no merit; arguments could and should have been raised either on direct appeal or in first rule 3.850 motion); Scott v. State, 656 So. 2d 204, 204 (Fla. 5th DCA 1995) (issues raised are same as those raised in first 3.850 motion; motion is successive and must be denied); Johnson v. State, 652 So. 2d 980, 980 (Fla. 5th DCA 1995) ("unlucky” thirteenth post-conviction attack; to protect limited judicial resources, petitioner prohibited from filing any further pro se pleadings).


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Citator

Cited By (34 total)

  • Simpkins v. State, 909 So. 2d 427 (Fla. 5th DCA 2005)
    …hat Simpkins obstinately persists in asserting erroneous interpretations of the law. We conclude this appeal is frivolous and an abuse of process. See Isley v. State, 652 So. 2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); O’Brien v. State, 689 So. 2d 336, 337 (Fla. 5th DCA 1997) (Criminal Appeal Reform Act of 1996 establishes intent of Legislature that the terms and conditions of collateral review and procedural bars to collateral review be strictly enforced). Accordingly, in order to conserve judic…
  • Davis v. State, 705 So. 2d 133 (Fla. 5th DCA 1998)
    …terms and conditions of collateral review and procedural bars to collateral review shall be strictly enforced. See, e.g., Bradley v. State, 703 So. 2d 1176 (Fla. 5th DCA 1997); Rooney v. State, 699 So. 2d 1027 (Fla. 5th DCA 1997); O’Brien v. State, 689 So. 2d 336 (Fla. 5th DCA 1997). Further, a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding or appeal in any court is subject to having all or any part of his or her gain time forfeited. § 944.28(2)(a), Fla. Stat. Wh…
  • Hepburn v. State, 934 So. 2d 515 (Fla. 3d DCA 2005)
    …cently has admonished the judiciary that “it is the Legislature’s intent that all terms and conditions of direct appeal and collateral review [shall] be strictly enforced.” § 924.051(8), Fla. Stat. (2005) (emphasis added). See also O’Brien v. State, 689 So. 2d 336, 337 (Fla. 5th DCA 1997) (“direct[ing]” that post-conviction litigants in that court be on notice of the newly-adopted admonition and warning of consequences for violations). As we have noted, this is Hepburn’s tenth post-trial motion or petition.…

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Authorities Cited (12 total)

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