DAVID GORGE, PETITIONER,

v.

THE STATE OF FLORIDA, RESPONDENT

Fla. 3d DCA | 1998-06-10

No. 98-756

Before COPE, FLETCHER and SORONDO, JJ.

712 So. 2d 440 Florida District Court of Appeal, Third District (1998) Positive Treatment

Cited by 6 cases

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Holding

The court held that a trial court must rule on a motion to correct sentence, even if the motion is successive or meritless.

Facts & Procedural History

Petitioner sought a writ of mandamus to compel a ruling on his motion for correction of sentence. The state argued the motion was moot as it raised id…

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Topics

Sanctions For Abuse Of Process Gain Time Forfeiture Abuse Of Judicial Process Successive Motions

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Opinion of the Court

PER CURIAM.

David Gorge filed a petition for writ of mandamus wherein he seeks to compel the lower tribunal to rule on his motion for correction of sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), which was filed on August 18,1997. Gorge alleges that he wrote several letters of inquiry as to the status of his motion, to no avail.

The state responds that the lower tribunal has not ruled on Gorge’s motion to correct illegal sentence because the motion raises the same complaints raised in four prior motions that have been ruled upon by the lower tribunal. On April 28, 1997, the lower tribunal denied a motion to correct illegal sentence in which Gorge raised the identical claims. On June 9, 1997, the lower tribunal denied Gorge’s motion for rehearing. This court affirmed the denial of relief on July 30, 1997. See Gorge v. State, 697 So. 2d 150 (Fla. 3d DCA 1997). As such, the state contends that the petition for writ of mandamus should be denied as moot. We do not agree.

We grant the petition for writ of mandamus insofar as it seeks the entry of a written order ruling on Gorge’s Rule 3.800 motion. See Dennis v. Rivkind, 633 So. 2d 104 (Fla. 3d DCA 1994); Kramp v. Fagan, 568 So. 2d 479 (Fla. 1st DCA 1990). A trial court is not free to refuse to rule, even on a meritless, successive motion.1 See id. at 480. Because we believe that the trial court will comply with this decision, we withhold issuance of the writ at this time.

. We note that an abuse of the judicial process by filing successive pleadings raising sentencing claims that were previously rejected on the merits may be the basis for the imposition of sanctions such as the forfeiture of gain time. See § 944.28(2)(a), Fla. Stat. (1997); Jackson v. State, 707 So. 2d 1211 (Fla. 5th DCA 1998); Brown v. State, 702 So. 2d 1370, 1371 (Fla. 1st DCA 1997); O'Brien v. State, 689 So. 2d 336 (Fla. 5th DCA), rev. denied, 697 So. 2d 511 (Fla. 1997).

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Kasim ALI v. State, 729 So. 2d 963 (Fla. 3d DCA 1999)

…nd signed by an attorney. We also caution defendant that 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 his or her gain-time forfeited. See Gorge v. State, 712 So. 2d 440, 440 n. 1 (Fla. 3d DCA 1998) (citing section 944.28(2)(a), Florida Statutes (1997) (“All or any part of the gain-time earned by a prisoner according to the provisions of law is subject to forfeiture if such prisoner ... is found by a court to have b…
Emory Harvey v. State, 734 So. 2d 1179 (Fla. 3d DCA 1999)

…s found by a court to have brought a frivolous suit, action, claim, proceeding or appeal in any court is subject to the forfeiture of all or any part of his or her accumulated gain time. See § 944.28(2)(a), Fla. Stat. (1997); Duncan; Gorge v. State, 712 So. 2d 440, 440 n. 1 (Fla. 3d DCA 1998); O’Brien v. State, 689 So. 2d 336, 337 (Fla. 5th DCA), review denied, 697 So. 2d 511 (Fla.1997). Affirmed.…
Green v. State, 830 So. 2d 142 (Fla. 3d DCA 2002)

…o have brought a frivolous suit, action, claim, proceeding or appeal in any court is subject to the forfeiture of all or any part of his or her accumulated gain time. See § 944.28(2)(a), Fla. Stat. (1997); Duncan, 728 So. 2d at 1237; Gorge v. State, 712 So. 2d 440, 440 n. 1 (Fla. 3d DCA 1998); O’Brien v. State, 689 So. 2d 336, 337 (Fla. 5th DCA), review denied, 697 So. 2d 511 (Fla.1997). The decision of the trial court denying defendant’s motion for post-conviction relief is affirmed. . Defendant has filed…

Authorities Cited

O'Brien v. State, 689 So. 2d 336 (Fla. 5th DCA 1997)
Kramp v. Osee R. Fagan, 568 So. 2d 479 (Fla. 1st DCA 1990)
Dennis v. The Honorable Leonard Rivkind, 633 So. 2d 104 (Fla. 3d DCA 1994)
Dukes v. State, 633 So. 2d 104 (Fla. 2d DCA 1994)
Fazio v. City OF Hollywood & Siris, 702 So. 2d 1370 (Fla. 1st DCA 1997)
Thomas v. State, 707 So. 2d 1211 (Fla. 1st DCA 1998)

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