Hall v. State

• Decision Date: 20 January 2000
• Docket Number: No. SC91122.,SC91122.
• Citation: 752 So.2d 575
• Parties: Clarence H. HALL, Jr., Petitioner, v. STATE of Florida and Michael W. Moore, Respondents.
• Court: Florida Supreme Court

752 So.2d 575

Clarence H. HALL, Jr., Petitioner, v. STATE of Florida and Michael W. Moore, Respondents.

No. SC91122.

Supreme Court of Florida.

January 20, 2000.

Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, Florida, for Respondents.

PER CURIAM.

We have for review Hall v. State, 698 So.2d 576 (Fla. 5th DCA 1997), based on express and direct conflict with Mercade v. State, 698 So.2d 1313 (Fla. 2d DCA 1997), concerning a court's proper role in the implementation of sections 944.28(2) and 944.279, Florida Statutes (1999), relating to the imposition of sanctions on prisoners who file frivolous pleadings.¹ We have jurisdiction. See Art. V, § 3(b)(3), Fla. Const.

In the Fifth District Court of Appeal's decision in Hall, the court utilized section 944.28(2)(a), Florida Statutes (Supp.1996), to sanction Hall for filing a frivolous appeal of the denial of his postconviction motion. Section 944.28(2)(a) provides, in pertinent part:

All or any part of the gain-time earned by a prisoner according to the provisions of law is subject to forfeiture if such prisoner ... is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal in any court....

§ 944.28(2)(a), Fla. Stat. (Supp.1996). After finding Hall's appeal to be frivolous, the Fifth District directed the Department of Corrections to forfeit Hall's gain time. See Hall, 698 So.2d at 577

.

The Second District Court of Appeal in Mercade also utilized section 944.28(2)(a) to sanction an inmate for filing a frivolous appeal of the denial of his postconviction motion. The court noted, however, that the Department of Corrections was vested with the sole discretion to declare a forfeiture under section 944.28(2)(a), and stated

[W]e do not have the authority to simply direct the Department of Corrections to forfeit a prisoner's gain time after finding that the prisoner's appeal is frivolous. In our view, to do so would be in direct conflict with the legislative scheme ... which ... establishes a host of mandatory procedural requirements which must first be met before the Department of Corrections, "in its discretion," may declare a forfeiture of a prisoner's gain time. Accordingly, we decline to follow the "direct" approach of Hall II. ...

... [We] recommend to the Department of Corrections that sanctions be imposed against the appellant in the form of a forfeiture of his gain time.

Mercade, 698 So.2d at 1316 (emphasis added). It is clear that the Fifth District's "directing" the Department of Corrections to sanction an inmate expressly and directly conflicts with the Second District's "recommending" such a sanction.

However, upon review we note that there is a preliminary question raised by Hall which has not been addressed by either court, but which we conclude controls the final decision in this case.² That question is whether an appeal of a postconviction motion is a "collateral criminal proceeding," and if so, whether a court may utilize section 944.28(2)(a), which contains no collateral criminal prohibition, independently of section 944.279, which contains language prohibiting its application to collateral criminal proceedings.

Both section 944.279 and the pertinent provisions of section 944.28(2)(a), Florida Statutes (1999), were enacted as part of an act that created or amended several statutory provisions for the purpose of reducing unnecessary or frivolous prisoner filings. See ch. 96-106, Laws of Fla.³ Not only did the act provide statutory authority permitting the courts, upon a determination that the pleading was frivolous, to send that finding to the prisoner's institution for disciplinary action, see § 944.279, Fla. Stat. (1999); ch. 96-106, § 5, Laws of Fla., the act also amended the Department's gain time forfeiture statute to add that the filing of an action found frivolous by a court may also subject a prisoner to gain time forfeiture. See § 944.28(2)(a), Fla. Stat. (1999); ch. 96-106, § 6, Laws of Fla. In addition, the same act amended the statute that regulates pleadings filed by indigents to exclude prisoners, and created a new indigency statute for prisoner filings. See §§ 57.081, 57.085, Fla. Stat. (1999); ch. 96-106, § 1, 2, at 93-95. Quite importantly, these amendments, except the disciplinary forfeiture provision of section 944.28(2)(a), provide that the restrictions do not apply to a "criminal proceeding or a collateral criminal proceeding." See §§ 944.279(2), 57.085(10), Fla. Stat. (1999).

We conclude that a postconviction motion is a collateral criminal proceeding for purposes of the frivolous filing statutes. The Legislature did not define the term "collateral criminal proceeding" in the statute, nor have we found a definition of a "criminal collateral proceeding" or "collateral criminal proceeding" in Black's Law Dictionary. However, we agree with that portion of the Fifth District's recent decision in Ferenc v. State, 697 So.2d 1262 (Fla. 5th DCA 1997), where it found that the new prisoner statute (which was part of the same act) does not apply to 3.850 motions because they are collateral criminal proceedings, and are specifically excluded from the new prisoner indigency statute.⁴Id.; see also § 57.085(10), Fla. Stat. (1999). Further, it seems only logical that all the statutes either created or amended by the act should be interpreted in the same manner. That is, we conclude that a postconviction motion, such as a 3.850 motion, should be considered a collateral criminal proceeding for purposes of considering sanctions under the frivolous filing statutes as well.⁵ Similarly, if a prisoner appeals the denial of his or her postconviction motion, that appellate proceeding would retain the collateral criminal nature of the original motion, and thus the appeal should also be considered a collateral criminal proceeding.

Therefore, having decided that both a postconviction motion and an appeal from the denial of that motion are collateral criminal proceedings, we now proceed to examine the second part of the question above: may gain time be forfeited pursuant to section 944.28(2)(a), independently of section 944.279, for a frivolous appeal of a postconviction motion? For purposes of deciding that question, we have examined the 1997 amendment to section 944.279 which removed the specific reference to a gain time forfeiture for frivolous filings, as well as the reference to section 944.28(2)(a), and replaced it with a reference to "disciplinary procedures pursuant to the rules of the Department." See § 944.279, Fla. Stat. (1999); ch. 97-78, § 14, at 447-48, Laws of Fla.

While section 944.28(2)(a) does not specifically prohibit its application to collateral criminal proceedings, that section is plainly tied to section 944.279 and, we conclude, cannot be utilized independently of that section. Of course that section clearly prohibits its application to such proceedings. Section 944.279 provides the courts with statutory authority to find that a frivolous filing warrants a referral to the Department of Corrections for discipline including possible gain time forfeiture under its administrative rules. Section 944.28(2)(a) is merely an ancillary statute which gives the Department of Corrections the statutory authority to forfeit gain time after a court has utilized 944.279 to find that the frivolous filing warrants a referral to the Department for discipline.

In Saucer v. State, 736 So.2d 10 (Fla. 1st DCA 1998), the First District recently concluded that since the Legislature had "amended section 944.279 by deleting all reference to loss of gain-time and section 944.28(2) and added provisions for disciplinary procedures pursuant to rules of the department provided in section 944.09," the Legislature had sought to clarify that the two sections were separate and independent, as each provided altogether different sanctions—one through Department discipline and the other through gain time forfeiture. Saucer, 736 So.2d at 12 (emphasis added).⁶ In reality, however, and as Judge Webster points out in his dissent in Saucer, the amendment made no change in the gain time sanction potential of either statute, and the actual effect of the amendment was to add additional sanctions, such as more restrictive confinement, for the filing of frivolous lawsuits, not to make section 944.28(2)(a) independent of section 944.279. While the amended version of section 944.279 provides that the finding of frivolousness is to be forwarded "to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09," that section does not set forth any rules. Section 944.09 is merely the general statutory authority for the Department to promulgate rules. The Department's rules have long provided for gain time forfeiture and the Department has long looked to section 944.28 for its gain time forfeiture authority. See Fla. Admin. Code R. 33-601.104 (previously 33-11.011).

It is clear from the actual words of the statute that discipline, including but not limited to gain time forfeiture, is now possible when a court finds that a pleading is frivolous. Even assuming that there is an ambiguity, however, the same conclusion is reached by examining the legislative history. According to the Legislature's bill analysis, the first purpose of the amendment was to provide for an amendment "allowing the Department of Corrections to impose other disciplinary actions, in addition to gain time forfeiture, against prisoners who file lawsuits deemed by the court to be frivolous."⁷ There is nothing in the analysis indicating that the Legislature intended to separate 944.28(2)(a) from 944.279 or in any way to allow 944.28(2)(a) to be used to sanction frivolous collateral criminal proceedings, such as postconviction proceedings,...