Campbell v. State , 2014 Fla. App. LEXIS 10901 ( 2014 )

Third District Court of Appeal
State of Florida
Opinion filed July 16, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2616
Lower Tribunal No. 00-26687
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Earl Travis Campbell,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Habeas Corpus.
Earl Travis Campbell, in proper person.
Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for respondent.
Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
ROTHENBERG, J.
The present habeas corpus petition is Earl Travis Campbell’s (“the
defendant”) eleventh postconviction effort to overturn his December 2000
conviction and subsequent sentence for second degree murder with a firearm.1 In
addition to the fact that this is the defendant’s eleventh effort, the claim the
defendant raises in his current petition is wholly without merit. Although the
defendant claims that manifest injustice has occurred due to the trial court’s failure
to instruct the jury on justifiable and excusable homicide when instructing the jury
on the lesser-included offense of manslaughter, the record, reflects that the trial
court properly instructed the jury on justifiable and excusable homicide and then
again expressly referenced the justifiable and excusable homicide instructions
1 (1) Direct appeal filed on 2/16/01 and per curiam affirmed on 2/27/02. Campbell
v. State, 807 So. 2d 801 (Fla. 3d DCA 2002).
(2) Rule 3.850 motion for postconviction relief filed in the trial court on 8/29/02,
and denied on 8/22/06.
(3) Petition for writ of mandamus denied by this Court in 2003. Campbell v.
State, 857 So. 2d 886 (Fla. 3d DCA 2003).
(4) Petition for a belated appeal filed on 8/23/07 regarding the denial of his rule
3.850 motion for postconviction relief on 8/22/06, which was granted by this
Court. On 7/15/09, this Court affirmed the denial of the defendant’s rule 3.850
motion for postconviction relief. Campbell v. State, 72 So. 3d 758 (Fla. 3d DCA
2009) (table).
(5) Federal habeas petition filed on 3/19/10, and denied on 11/30/2010.
Campbell v. McNeil, 2010 WL 4942977 (S.D. Fla. 2010) (unpublished).
(6) Appeal of the denial of the defendant’s federal habeas corpus petition filed on
12/20/10, and subsequently denied.
(7) Motion for a certificate of appealability filed with the Eleventh Circuit Court
of Appeals on 2/9/11 and denied on 6/16/11.
(8) Motion to correct sentence filed in the trial court on 4/15/13, and denied on
5/10/13.
(9) Motion to correct sentence filed in the trial court on 7/12/13, and denied on
7/26/13.
(10) Appeal of the 7/26/13 denial of his motion to correct sentence, which was
filed in this Court on 8/29/13, and affirmed on 3/19/14.
(11) The instant petition filed on 10/11/13.
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when instructing the jury on manslaughter. Specifically, the trial court instructed
the jury, in relevant part, as follows:
JUSTIFIABLE HOMICIDE
F.S. 782.02
The killing of a human being is justifiable and lawful if necessarily
done while resisting an attempt to murder or commit a felony upon the
defendant, or to commit a felony in any dwelling house in which the
defendant was at the time of the killing.
EXCUSABLE HOMICIDE
F.S. 782.03
The killing of a human being is excusable, and therefore lawful, under
any one of the following three circumstances:
1. When the killing is committed by accident or misfortune in doing
any lawful act by lawful means with ordinary caution and without
unlawful intent, or
2. When the killing occurs by accident and misfortune in the heat of
passion, upon any sudden and sufficient provocation, or
3. When the killing is committed by accident and misfortune
resulting from sudden combat, if a dangerous weapon is not used
and the killing is not done in a cruel or unusual manner.
Then later, when instructing the jury on manslaughter, the trial court
specifically referenced the justifiable and excusable homicide instructions it had
previously read to the jury: “[T]he defendant cannot be guilty of Manslaughter if
the killing was either justifiable or excusable homicide as I have previously
defined those terms.” Thus, the jury was properly instructed, and the defendant’s
claim in this petition is frivolous.
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Based on the defendant’s numerous, successive, and meritless
postconviction filings, on March 19, 2014, this Court ordered the defendant to
show cause why he should not be prohibited from filing further pro se pleadings in
this Court concerning his conviction and sentence in case number 00-26687. After
carefully considering the defendant’s response to this Court’s show cause order,
see State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999) (explaining that courts should
give pro se litigants notice and an opportunity to respond before preventing them
from making further filings), we have decided to give the defendant the benefit of
the doubt, and thus, we discharge the show cause order. We do so, however, with
a strong reminder to the defendant that there comes a point in postconviction
proceedings where “enough is enough.” Isley v. State, 652 So. 2d 409, 410 (Fla.
5th DCA 1995).
Although we recognize the defendant’s right to challenge the lawfulness of
his conviction(s) and sentence, see Hepburn v. State, 934 So. 2d 515, 517 (Fla. 3d
DCA 2005); Johnson v. State, 915 So. 2d 682, 684 (Fla. 3d DCA 2005), there is no
constitutional right to file a frivolous lawsuit. See Hepburn, 934 So. 2d at 517-18;
see also Lewis v. Casey, 518 U.S. 343, 353 (1996) (“Depriving someone of a
frivolous claim . . . deprives him of nothing at all, except perhaps punishment of . .
. sanctions.”).
Petition denied; order to show cause discharged.
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