JOHN M. FITZGERALD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of Fitzgerald's Rule 3.850 motion as time-barred but reversed the trial court's order prohibiting pro se filings because the court failed to provide notice and opportunity to be heard before imposing the sanction.
A trial court must provide notice and an opportunity to respond before imposing a sanction prohibiting a litigant from filing further pro se pleadings.
[1] A trial court must provide a litigant with notice and an opportunity to show cause before imposing a sanction that prohibits the filing of further pro se pleadings.
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Join FLexlaw to unlock all legal intelligenceJohn M. Fitzgerald appealed the denial of his Florida Rule of Criminal Procedure 3.850 post-conviction motion and a trial court order prohibiting him …
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John M. Fitzgerald appeals from the denial of his Florida Rule of Criminal Procedure 3.850 motion and from the trial court’s May 3, 2009 order prohibiting him from filing further pro se post-conviction motions. We affirm the denial of his Rule 3.850 motion because the motion is time barred. We are compelled to reverse the order prohibiting Fitzgerald from filing further pro se pleadings, however, as there is no indication in the record the trial court entered a show cause order before entering its order barring Fitzgerald from filing further pro se motions. On the contrary, the trial court sua sponte issued the order at the behest of the State, pursuant to its May 3, 2007 motion.
Because the trial court was required to provide Fitzgerald with notice of the intended sanction and an opportunity to respond thereto, we reverse the order prohibiting Fitzgerald from filing further pro se pleadings. See State v. Spencer, 751 So.2d 47 (Fla.1999); Morgan v. State, 983 So.2d 1230 (Fla. 5th DCA 2008); Epps v. State, 941 So.2d 1206 (Fla. 4th DCA 2006). On remand, should the trial court choose to pursue this sanction again, it first must provide Fitzgerald notice and an opportunity to show cause why the sanction should not be imposed. See Jordan v. State, 760 So.2d 973 (Fla. 2d DCA 2000).
Affirmed in part, reversed in part, and case remanded with instructions.
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Citator
Cited By
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Johnson v. State, 75 So. 3d 368 (Fla. 3d DCA 2011)…ing that the trial court must first provide the defendant "with notice and an opportunity to respond before prohibiting further pro se attacks on a conviction and sentence as a sanction for prior repeated and frivolous motions); Fitzgerald v. State, 18 So. 3d 1145, 1145 (Fla. 3d DCA 2009) (reversing an order prohibiting the defendant from filing further pro se pleadings where there was no indication in the record that the trial court had first entered a show cause order). Reversed and remanded for further p…
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Morgan v. State, 76 So. 3d 25 (Fla. 3d DCA 2011)…ding that the trial court must first provide the defendant with notice and an opportunity to respond before prohibiting further pro se attacks on a conviction and sentence as a sanction for prior repeated and frivolous motions); Fitzgerald v. State, 18 So. 3d 1145, 1145 (Fla. 3d DCA 2009) (reversing an order prohibiting the defendant from filing further pro se pleadings where there was no indication in the record that the trial court had first entered a show cause order). Reversed and remanded for further p…
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Montanez v. State, 45 Fla. L. Weekly D1096 (Fla. 3d DCA 2020)…e as a sanction for prior repeated and frivolous motions”); Lee v. State, 45 Fla. L. Weekly D1096 (Fla. 3d DCA May 6, 2020); Chambers v. State, 225 So. 3d 311 (Fla. 3d DCA 2017); Morgan v. State, 76 So. 3d 25 (Fla. 3d DCA 2011); Fitzgerald v. State, 18 So. 3d 1145 (Fla. 3d DCA 2009). Thereafter, the trial court should consider any response filed, together with Montanez’s filing history and other relevant circumstances, determine whether good cause has been shown, and enter an order accordingly. We therefore v…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Spencer, 751 So. 2d 47 (Fla. 1999)
- Felton Epps v. State, 941 So. 2d 1206 (Fla. 4th DCA 2006)
- Exum Walker v. State, 760 So. 2d 973 (Fla. 5th DCA 2000)
- Abram Jordan v. State, 760 So. 2d 973 (Fla. 2d DCA 2000)
- Morgan v. State, 983 So. 2d 1230 (Fla. 5th DCA 2008)