David Charles Sussman v. Department of Corrections , 257 So. 3d 604 ( 2018 )


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  •           FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-3701
    _____________________________
    DAVID CHARLES SUSSMAN,
    Appellant,
    v.
    DEPARTMENT OF CORRECTIONS,
    Appellee.
    _____________________________
    On appeal from the Circuit Court for Leon County.
    Charles W. Dodson, Judge.
    October 18, 2018
    PER CURIAM.
    Appellant, David Charles Sussman, appeals the dismissal of
    his pleading titled “Petition for Writ of Mandamus; 42 U.S.C. §
    1983 Civil Rights Complaint; and F.S. 768.28 Tort Complaint,” in
    which he sought the reversal of his disciplinary report and return
    of lost gain time as to Claims 1 and 2 and $10,000 in nominal and
    compensatory damages as to Claims 3 through 7. The trial court
    dismissed the pleading without prejudice because of Appellant’s
    failure to comply with its prior Order on Indigence Status, wherein
    it declined to adjudicate him indigent under section 57.085, Florida
    Statutes, and warned that he had thirty days to pay the filing fees
    or the matter would be dismissed without prejudice.
    On appeal, Appellant argues that dismissal was improper
    because section 57.085, Florida Statutes (2017), does not apply to
    his collateral criminal claims. Appellant’s argument is without
    merit because, as he recognizes, his pleading is a mixed claim
    petition, and mixed petitions are not exempt from section 57.085.
    See Schmidt v. McDonough, 
    951 So. 2d 797
    , 802-03 (Fla. 2006)
    (concluding that “because the underlying mandamus petition in
    this case is a ‘mixed’ petition, containing both a gain time claim
    and a civil claim, the petition itself is subject to the prepayment
    and lien requirements of the prisoner indigency statute”); see also
    Thomas v. Dep’t of Corr., 
    159 So. 3d 291
    , 292 (Fla. 1st DCA 2015)
    (finding that the appellant’s mandamus petition challenging his
    inability to earn gain time and loss of eligibility for a work release
    program was a mixed petition subject to section 57.085).
    Appellant’s second argument that the dismissal of his civil
    claims pursuant to section 57.085 violates treaties the United
    States has entered because it imposes on him an obligation to pay
    based solely on his status as a prisoner is likewise without merit.
    See Smith v. Fla. Dep’t of Corr., 
    974 So. 2d 1110
    , 1111-12 (Fla. 1st
    DCA 2007) (“The appellants question the constitutionality of
    section 57.085, and suggest that it violates their right of access to
    the courts. However, the supreme court has recognized that the
    legislature may address the prepayment of fees and costs as
    provided in section 57.085. See Jackson v. Florida Dep’t of
    Corrections, 
    790 So. 2d 381
    (Fla. 2000).”).
    Accordingly, we affirm. Appellant is cautioned that abusive,
    repetitive, malicious, or frivolous filings will result in sanctions
    such as a bar on pro se filing in this court or referral to prison
    officials for disciplinary proceedings, which may include forfeiture
    of gain time. See State v. Spencer, 
    751 So. 2d 47
    (Fla. 1999); see
    also § 944.279(1), Fla. Stat. (2017).
    AFFIRMED.
    WOLF, LEWIS, and ROWE, JJ., concur.
    2
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    David Charles Sussman, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Brett Coleman, Assistant
    Attorney General, Tallahassee, for Appellee.
    3
    

Document Info

Docket Number: 17-3701

Citation Numbers: 257 So. 3d 604

Filed Date: 10/18/2018

Precedential Status: Precedential

Modified Date: 10/18/2018