EDWARD BIVINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2010-05-06
No. 1D09-189
KAHN, PADOVANO, and WETHERELL, JJ., concur.
35 So. 3d 67 Florida District Court of Appeal, First District (2010) Caution
Cited by 8 cases

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Synopsis

Edward Bivins challenges an order barring him from filing pro se papers regarding his conviction and sentence. The Florida First District Court of Appeal reverses the trial court's order, finding that prohibiting a pro se litigant from filing further motions based on only a single pro se petition constitutes an abuse of discretion, particularly where the litigant was acting on counsel's advice.


Holding

The court reversed the trial court's order, holding that prohibiting Bivins from filing further pro se motions constituted an abuse of discretion. The court found that barring a pro se litigant from filing papers is an extreme remedy that should be imposed only after demonstrating egregious abuse of judicial process, and that filing a single pro se petition, particularly when undertaken on counsel's advice, does not warrant such a serious sanction.


Headnotes

[1] A court abuses its discretion by barring a pro se litigant from filing further pleadings after only a single pro se filing, even if the litigant failed to follow a prior…

[2] Denying a pro se litigant the opportunity to file future petitions is a serious sanction, particularly when the litigant is a criminal defendant.

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Key Quotes

“Courts may, upon a demonstration of egregious abuse of judicial process, restrict parties from filing pro se pleadings with the court.”

Establishes the standard for restricting pro se filings—requiring egregious abuse of judicial process

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Facts & Procedural History

Bivins was convicted of burglary by a Leon County jury and sentenced to five years in prison. The Department of Corrections determined this conviction…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant Edward Bivins challenges an order barring him from filing further pro se papers in relation to his conviction and sentence. We reverse.

A Leon County jury convicted Bivins of burglary of a structure, for which the circuit court sentenced appellant to five years in prison. The Department of Corrections (Department) determined that by this conviction and sentence, Bivins violated his parole in connection with two unrelated offenses, committed in Gadsden County. A Gadsden County court thus recommitted appellant to serve the 11 years in prison remaining on sentences imposed in Gadsden County Case Numbers 93-265 and 93-481.

Defense counsel filed a motion to clarify and/or modify sentence, inquiring of the Circuit Court for Leon County whether the sentence for burglary was to run concurrently with, or consecutive to, the sentences for violation of parole. The circuit court denied the motion, asserting that “the Court did not intend to sentence Mr. Bivins concurrently with any sentence imposed in any other case.” Before the direct appeal, appellate counsel filed a motion to correct sentencing error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Citing Richardson v. State, 947 So.2d 1219, 1221 (Fla. 1st DCA 2007), appellant argued that the sentencing court failed to “exercise its discretion to order a sentence imposed for an offense committed while on community release concurrent or consecutive to [the] community release sentence.” The circuit judge found no infirmity with the sentence, and in denying the motion concluded that “[n]o motion for clarification, rehearing or reconsideration of the order, however titled, shall be allowed nor will any such motion be entertained if filed.”

*69After Bivins lost his direct appeal, he filed a pro se motion pursuant to Florida Rule of Criminal Procedure 3.800(c), requesting the court to run the sentences concurrently. The court denied the motion, but also directed Bivins to show cause why he should not be barred from filing further pro se motions in this case and why the court should not recommend that the Department take appropriate disciplinary action. Appellant filed a motion to show cause, stating he filed the subject motion only on the advice of counsel, who, Bivins said, told him, “Perhaps you can ask the Court to make the sentences concurrent in a rule 3.800(c) motion.” The circuit court nonetheless entered an order barring appellant from filing further pro se pleadings in the case.

We review a determination on “the ability of a pro se litigant to separately address the court” for abuse of discretion. See Sheppard v. State, 17 So.3d 275, 280 (Fla.2009). “Courts may, upon a demonstration of egregious abuse of judicial process, restrict parties from filing pro se pleadings with the court.” State v. Spencer, 751 So.2d 47, 47 (Fla.1999). Though we are sensitive to the need for judicial economy and the efficient administration of justice, we also observe that pro se litigants are afforded some latitude in the filing of papers. See Mims v. State, 994 So.2d 1233 (Fla. 3d DCA 2008) (providing that “denying a pro se litigant the opportunity to file future petitions is a serious sanction, especially where the litigant is a criminal defendant”); Martin v. Stewart, 588 So.2d 996, 996 (Fla. 4th DCA 1991) (referring to “extreme remedy” of barring defendant from further pro se filings).

Historically, moreover, the interests of justice have abided some rather uninhibited pro se filers, litigants far more prolific in their consumption of judicial resources than Mr. Bivins. See, e.g., Minor v. State, 963 So.2d 797, 798 (Fla. 3d DCA 2007) (directing clerk of court “not to accept any further pro se pleadings from defendant” only after tenth post-conviction motion for relief); Martin, 588 So.2d at 996 (invoking “extreme remedy” of barring appellant from filing further pro se papers” after entertaining “at least fifteen separate proceedings”). Having filed but a single pro se petition, appellant has not yet exhibited the sort of reflexive caviling that might warrant such a serious sanction, his failure to follow a duly rendered court order notwithstanding. In this case, we find the trial court abused its discretion by prohibiting appellant from filing further pro se motions. The trial court order prohibiting Bivins from filing future pro se papers is thus REVERSED.

KAHN, PADOVANO, and WETHERELL, JJ., concur.


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Citator

Cited By

  • Gaston v. State, 141 So. 3d 627 (Fla. 4th DCA 2014)
    …ng Defendant from further pro se filings after his third postconviction motion. Florida courts have long recognized the need for judicial economy and the importance of curtailing the egregious abuse of judicial processes. See, e.g., Bivins v. State, 35 So. 3d 67 (Fla. 1st DCA 2010). Nevertheless, barring a criminal pro se litigant from filing future petitions has been described as an “extreme remedy” which should be reserved for those who have repeatedly filed successive, frivolous, and meritless claims whi…
  • Wilson v. State, 57 So. 3d 1000 (Fla. 4th DCA 2011)
    …ction relief. While we can sympathize with the frustration of the circuit court, we do not believe that Spencer was ever intended to be used to prohibit a prisoner from filing at least a first motion for postconviction relief. See Bivins v. State, 35 So. 3d 67 (Fla. 1st DCA 2010). Spencer and its progeny seek to prevent a prisoner from flooding the courts with repetitious, successive, and frivolous pleadings. Here, appellant is being prohibited from filing his first, non-successive motion for postconvicti…
  • Roland v. State, 267 So. 3d 449 (Fla. 4th DCA 2019)
    …But, this Court has recognized that prohibiting all pro se filing is considered an “extreme remedy” for “curtailing the egregious abuse of judicial processes.” Gaston v. State, 141 So. 3d 627, 628 (Fla. 4th DCA 2014); see also Bivins v. State, 35 So. 3d 67, 69 (Fla. 1st DCA 2010) (reversing a prohibition on further pro se filing where the defendant filed a single pro se motion raising a variation of an issue that the trial court already denied and ordered that it would not reconsider). Before 3…

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