JEFFREY WAGNER, APPELLANT,
v.
JAMES R. MCDONOUGH, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEE
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Wagner appeals an order granting him indigent status for appeal and imposing a lien on his inmate trust account for court costs and fees. The court dismisses the appeal for lack of jurisdiction, holding that review of indigency orders must be pursued by motion under Florida Rule of Appellate Procedure 9.430, not by separate appeal.
Review of indigency orders, including those granting indigent status and imposing liens on inmate trust accounts, must be sought by motion filed in the lower tribunal rather than by separate appeal. Direct appeal of such orders is improper and the appellate court lacks jurisdiction over such appeals.
[1] Review of an order determining indigency status for purposes of appeal, which directs the imposition of a lien on an inmate's trust account for costs and fees, is properl…
[2] A separate appeal from an order determining indigency status and directing a lien on an inmate's trust account is improper and duplicative when a motion for review has al…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the proper avenue for review is by motion in the underlying appeal, rather than by a separate appeal”
Establishes the core holding that indigency orders must be reviewed by motion, not separate appeal
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Join FLexlaw to unlock all legal intelligenceWagner, an inmate, was granted indigent status for purposes of pursuing an appeal in case 1D05-4075 pursuant to section 57.085, Florida Statutes. The …
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PER CURIAM.
By filing a notice of appeal, the appellant has sought plenary review of an order of the lower tribunal determining him to be indigent for purposes of the appeal taken in case number 1D05-4075. The underlying appeal results from an order of the lower tribunal determining the appellant to be indigent for purposes of proceeding in the lower tribunal in a civil proceeding, pursuant to section 57.085, Florida Statutes. The order further directs the Department of Corrections to impose a lien on the appellant’s inmate trust account for the full amount of costs and fees due in the civil proceeding. The order here on appeal directs the Department of Corrections to place a lien on the appellant’s inmate trust account for the full amount of lower tribunal costs and fees incurred in connection with appeal number 1D05-4075.
We conclude that review of such an order is properly by motion filed pursuant to Florida Rule of Appellate Procedure 9.430, rather than by appeal, and therefore dismiss the instant appeal.
Rule 9.430 provides that a motion for leave to proceed on appeal without payment of costs shall be filed in the lower tribunal and that review of the lower tribunal’s decision shall be by motion. The type of order on appeal here, which grants indigency status, defers payment of court costs and fees, and consequently directs the imposition of a lien, is most likely not specifically contemplated by the rule. Although the rule primarily addresses review of orders denying indigency status, the language of the rule does not expressly limit its application to such orders. We therefore find that the rule allows review of the order here on appeal.
Accordingly, the proper avenue for review is by motion in the underlying appeal, rather than by a separate appeal. Here, the appellant filed both a motion for review in case number 1D05-4075, and a separate notice of appeal that became the present case. For this reason, the instant appeal is both improper and duplicative. We dismiss this appeal for lack of jurisdiction.
Nevertheless, the Court notes that because the appellant filed his motion for review before dismissal of the underlying appeal, see Banks v. State, 916 So. 2d 35 (Fla. 1st DCA 2005), the Court will consider the motion for review.
KAHN, C.J., WEBSTER and POLSTON, JJ., concur.