JEFFREY WAGNER, APPELLANT,
v.
JAMES R. MCDONOUGH, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEE
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A Florida inmate appealed a disciplinary action order and challenged the circuit court's imposition of a lien against his trust account to recover appellate costs and fees. The appellate court dismissed the underlying appeal for lack of jurisdiction but granted the inmate's motion for review, holding that section 57.081 does not authorize imposition of a lien in collateral criminal proceedings.
A lien cannot be imposed under section 57.081 to recover appellate costs and fees. Although recent amendments to sections 57.082(5) and 28.246(4) authorize recovery through a payment plan, the legislature has not provided statutory language in section 57.081 authorizing a lien, as it has done in section 57.085(5).
[1] An order assessing costs and fees against an inmate following the filing of a notice of appeal is reviewable under Florida Rule of Appellate Procedure 9.430(a).
[2] Indigency determinations in collateral criminal proceedings, such as a mandamus action challenging forfeiture of gain time, are governed by section 57.081, Florida Statut…
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Join FLexlaw to unlock all legal intelligence“A payment plan is to be distinguished from a lien, which is a qualified right or proprietary interest which may be exercised over the property of another.”
Establishes the legal distinction between payment plans and liens, supporting the court's reasoning that the amended statutes do not authorize lien imposition.
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Join FLexlaw to unlock all legal intelligenceJeffrey Wagner, an inmate in the Florida Department of Corrections, filed a circuit court mandamus action challenging a disciplinary action that resul…
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PER CURIAM.
Upon consideration of appellant’s response to the court’s September 27, 2005, order to show cause, the court has determined that the lower tribunal’s July 22, 2005, order is not an appealable order. See Banks v. State, 916 So. 2d 35 (Fla. 1st DCA 2005). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.
Upon filing of the notice of appeal in this cause, the circuit court assessed certain costs and fees associated with the appeal and directed the Florida Department of Corrections to impose a lien against appellant’s inmate trust account to recover those costs and fees. Appellant moves for review of that order and we have jurisdiction to act on the motion under the provisions of Florida Rule of Appellate Procedure 9.430(a).
In his circuit court mandamus action, appellant challenges a disciplinary action taken against him by the Florida Department of Corrections which resulted in forfeiture of gain time.
Thus, it is a collateral criminal proceeding in which indigency determinations are to be made in accordance with section 57.081, Florida Statutes. Schmidt v. Crusoe, 878 So. 2d 361 (Fla.2003). In Cason v. Crosby, 892 So. 2d 536 (Fla. 1st DCA 2005), this court noted that section 57.081, unlike section 57.085, does not contain statutory language authorizing imposition of a lien and found that a lien in this circumstance was not permissible. Appellee opposes the motion and relies upon certain recent amendments to sections 57.082(5) and 28.246(4) to support its theory that a lien can now be utilized to recover fees and costs in an action governed by section 57.081.
We disagree. These statutes concern the participation by a party to circuit court litigation in a “payment plan” to recoup the funds. A payment plan is to be distinguished from a lien, which is a qualified right or proprietary interest which may be exercised over the property of another. City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 (1935).
The Florida Legislature has demonstrated in section 57.085(5) its awareness of the language necessary to authorize imposition of a lien, and such language does not appear in section 57.081 or the other statutes relied upon by appellee in opposing appellant’s motion for review. We therefore grant the motion and quash that portion of the circuit court’s order of September 8, 2005, which authorized the Department of Corrections to impose a lien against appellant’s trust account.
APPEAL DISMISSED; MOTION FOR REVIEW GRANTED.
KAHN, C.J., WEBSTER and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Scott v. McDONOUGH, 946 So. 2d 90 (Fla. 1st DCA 2006)…ist for the circuit court to impose a lien to recover costs and fees in proceedings of this nature. Id.; see also Terry v. McDonough, 935 So. 2d 81 (Fla. 1st DCA 2006); Rodriguez v. McDonough, 932 So. 2d 515 (Fla. 1st DCA 2006); Wagner v. McDonough, 927 So. 2d 216, 217 (Fla. 1st DCA 2006). WEBSTER, BENTON, and VAN NORTWICK, JJ„ concur.…
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Terry v. McDONOUGH, 935 So. 2d 81 (Fla. 1st DCA 2006)…d. at 537. The Department of Corrections argues that, due to recent changes to sections 28.246(4) and 57.082(5), Florida Statutes, liens on inmate accounts are now authorized. However, this argument was rejected by this court in Wagner v. McDonough, 927 So. 2d 216, 217 (Fla. 1st DCA 2006). Accordingly, the order under review is quashed insofar as the order upholds the lien, and the case is remanded with directions that the trial court order the Department of Corrections to dissolve the lien and direct reimbu…
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Stokes v. Fla. Dep't OF Corr., 948 So. 2d 75 (Fla. 1st DCA 2007)…d his petition in the trial court challenging a disciplinary proceeding which resulted in disciplinary confinement and the loss of gain-time. The lien is not proper. See Schmidt v. Crusoe, 878 So. 2d 361 (Fla.2003). As we did in Wagner v. McDonough, 927 So. 2d 216, 217 (Fla. 1st DCA 2006), we rejected the argument made to us by the State that recent amendments to sections 57.082(5) and 28.246(4) authorize imposition of the lien. As for the issues raised by the petition for extraordinary relief filed below, t…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003)
- Cason v. Crosby, 892 So. 2d 536 (Fla. 1st DCA 2005)
- Robert E. Banks v. State, 916 So. 2d 35 (Fla. 1st DCA 2005)
- City of Sanford v. McClelland, 121 Fla. 253 (Fla. 1935)