Jonathan Lewis v. Florida Department of Corrections , 143 So. 3d 1112 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JONATHAN LEWIS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D12-5677 and 1D12-5678
FLORIDA DEPARTMENT OF
CORRECTIONS,
Appellee.
_____________________________/
Opinion filed August 1, 2014.
An appeal from the Circuit Court for Bradford County.
Toby S. Monaco, Judge.
Jonathan Lewis, Appellant.
Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney
General, Office of the Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Jonathan Lewis, an inmate, appeals orders dismissing two negligence actions
because he did not pay the filing fees. We reverse and remand, because the trial
court directed appellant to comply with a portion of section 57.085(7), Florida
Statutes (2012), that has been declared unconstitutional.
After appellant asked the lower court to find that he was indigent and to
waive court costs,1 the court determined that appellant had been adjudicated
indigent under section 57.081, Florida Statutes (2012), twice in the preceding three
years, and thus directed him pursuant to section 57.085(7) to submit a listing of
each suit, action, claim, proceeding, or appeal that he had brought in the preceding
five years, and to attach a copy of each of these documents and a record of the
disposition of each.
Appellant did not comply with the lower court’s order, and instead filed
various motions asking the lower court to dispense with these requirements
because of the large amount of paperwork involved and the cost, and because the
clerk of the court could print out such information from a website. The lower court
denied appellant’s motions to be declared indigent and directed him to pay the
filing fees within thirty days. When Appellant did not pay the filing fees, the court
dismissed his lawsuits. This was error.
The Florida Supreme Court had held the copying requirement in section
57.085(7) to be unconstitutional. Jackson v. Department of Corrections, 790 So. 2d
381, 386 (Fla. 2000); Mitchell v. Moore, 786 So. 2d 521 (Fla. 2001). We cannot
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Because appellant’s lawsuits are negligence actions rather than collateral criminal
proceedings, he is not entitled to a waiver of court costs under section 57.081 if he
is found to be indigent on remand, but only to a deferral of prepayment of court
costs and fees under section 57.085. See John v. Department. of Corrs., 124 So. 3d
381, 383 (Fla. 1st DCA 2013).
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determine based upon the record that appellant would have declined to comply had
the court only directed him to file a listing of prior actions, which would have
warranted denial of appellant’s motion for waiver, and thus we cannot affirm on
that basis. See, e.g., Johnson v. Burns, 804 So. 2d 345 (Fla. 4th DCA 2001).
Applying the rule of lenity to this pro se litigant, see Esquivel v.
McDonough, 946 So. 2d 104, 105 n.1 (Fla. 1st DCA 2007), appellant sufficiently
challenged the copy requirement below and on appeal. Because this requirement
was unconstitutionally imposed contrary to Jackson and Mitchell, appellant must
be given the opportunity to submit a list of his prior actions required by section
57.085(7), minus the copies.
Contrary to the arguments of the parties, the trial court did not definitively
determine that appellant is a vexatious litigant, and any such determination must be
reached in compliance with section 68.093, Florida Statutes (2012).
REVERSED and REMANDED for further proceedings.
PADOVANO, WETHERELL, and MAKAR, JJ., CONCUR.
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