Johnson v. State, 3D18-1988

• Decision Date: 24 April 2019
• Docket Number: No. 3D18-1988,3D18-1988
• Citation: 305 So.3d 9
• Parties: Demetrius Tony JOHNSON, Petitioner, v. The STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

305 So.3d 9

Demetrius Tony JOHNSON, Petitioner,
v.
The STATE of Florida, Respondent.

No. 3D18-1988

District Court of Appeal of Florida, Third District.

Opinion filed April 24, 2019

Demetrius Tony Johnson, in proper person.

Ashley Moody, Attorney General, and Keri T. Joseph, Assistant Attorney General, for respondent.

Before LOGUE, SCALES and LINDSEY, JJ.

PER CURIAM.

On January 23, 2019, this Court issued an opinion denying a petition for writ of habeas corpus filed by Demetrius Tony Johnson. Our opinion contained an order to show cause why Johnson should not be prohibited from filing with this Court any further pro se appeals, petitions, motions or other proceedings related to his three-count criminal conviction in Circuit Court case number 96-40835. Johnson's latest petition was his nineteenth filing in this Court since 2002, after this Court had affirmed his conviction in Johnson v. State, 725 So.2d 1273 (Fla. 3d DCA 1999).

Johnson responded to the order to show cause on March 7, 2019. In his response, he raises two issues: (i) whether an appellate court must address the merits of a claim before dismissing that claim as successive; and (ii) whether the imposition of a sanction that prohibits further pro se filings violates due process.

As to Johnson's first argument, this Court addressed the merits of his claim in the identical case of Johnson v. State, 245 So.3d 718 (Fla. 3d DCA 2017). The denial of Johnson's petition for writ of habeas corpus in the previous case was based on the merits. See Crittenden v. State, 67 So.3d 1184, 1185 n.1 (Fla. 5th DCA 2011) ("[A] per curiam affirmance without opinion is not an indication that the case was not considered on the merits.").

Johnson's second argument raises a due process concern. Ironically, he questions due process while exercising his right to due process. This Court provides the incarcerated person notice in the form of an order to show cause and an opportunity to be heard in his or her response brief, thus satisfying the two elements of due process. State v. Spencer, 751 So.2d 47, 48 (Fla. 1999) ; Whipple v. State, 112 So.3d 540, 540 (Fla. 3d DCA 2013).

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