Warren R. Johnson v. State of Florida , 146 So. 3d 1245 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WARREN R. JOHNSON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-1682
STATE OF FLORIDA,
Respondent.
___________________________/
Opinion filed September 10, 2014.
Petition for Habeas Corpus for Belated Appeal -- Original Jurisdiction.
Warren R. Johnson, pro se, Petitioner.
Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, for Respondent.
PER CURIAM.
Pro se petitioner Warren Johnson files a petition alleging that his appellate
counsel was ineffective in First District Court of Appeal case number 1D05-5612.
That case was Mr. Johnson’s direct criminal appeal, wherein this court affirmed his
judgment and sentence for second-degree murder and possession of a firearm during
the commission of a felony. Mandate issued in that case on July 17, 2007.
In support of this untimely petition, 1 Mr. Johnson attaches an appendix
containing a copy of an earlier petition alleging ineffective assistance of appellate
counsel, which bears an institutional date stamp showing that the petition was provided
to institutional officials for mailing on March 11, 2009. He avers, under oath, that he
initially mailed the petition in 2009, but that this court appears not to have received it.
Mr. Johnson argues that although the 2009 petition was never received by this court,
because it was timely submitted for mailing, the court should find that he timely
invoked the court’s jurisdiction.
A review of the petition purportedly filed in 2009 showed that it contained
citations to cases decided as recently as 2013, including, inter alia, Robards v. State,
112 So. 3d 1256 (Fla. 2013), Peterson v. State, 94 So. 3d 514 (Fla. 2012), and State v.
Montgomery, 39 So. 3d 252 (Fla. 2010). Accordingly, this court ordered the petitioner
to show cause why he should not be subjected to sanctions for his apparent attempt to
commit fraud on this court. In Mr. Johnson’s response, which was also filed under
oath, he places the blame on the inmate law clerk he claims prepared his petition,
arguing that “[a]ny sanctions should not be contemplated in the pending cause where
it’s no fault of petitioner, where the prison legal assistance has made an unintentional
scriveners [sic] error in preparing petitioner’s legal documents . . . .” We fail to see
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“In no case shall a petition alleging ineffective assistance of appellate counsel on
direct review be filed more than 4 years after the judgment and sentence become final
on direct review.” Fla. R. App. P. 9.141(d)(5).
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how an “unintentional scrivener’s error” could result in a petition allegedly filed in
2009 containing citations to cases decided four years later. Petitioner goes on to argue
that Florida Rule of Appellate Procedure 9.410, governing sanctions, should only be
used “where the rules and procedures of the appellate court is [sic] repeatedly abused
or submission of motions submitted was [sic] frivolous . . . . [i]n the instant case, the
petitioner has not repeatedly abused or filed frivolous motion[s] with the intention to
mislead this Honorable Court, whereas, the Petitioner already has an extensive
sentence of (50) years that he plead[s] to this Honorable Court to reverse” (emphasis in
original). Thus, petitioner appears to suggest that sanctions are inappropriate where a
party has “only” committed a single abuse of process. We disagree; in situations
where, as here, the abuse of court process is egregious, a single incident may indeed
warrant the imposition of sanctions under Rule 9.410.
The petitioner concludes by alleging, under oath, that the questionable citations
in the 2009 petition came from pages that were unintentionally mixed into the copy of
the original petition from a later petition by a prison law clerk who
. . . anticipated that this court would allow the petitioner to refile his new
petition as timely, therefore, the prison legal assistant sought to prepare
an amended Petition for Habeas Corpus with new precedent law that had
arose [sic] since petitioner submitted his prior petition for habeas corpus
that was date stamped March 11, 2009, that was lost by prison officials . .
. . The pages 13, 22, 23, obtained in the original petition that obtain cases
subsequent to the “Prison Date Stamp” [are] pages from the amended
petition that got misplaced and added to the original petition during the
copying process . . . . Wherefore, the Petitioner alleges that due to
negligence on the behalf of preparing his legal documents, and his own
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ignorance to law and appellate procedures, these cases were mistakenly
placed with the original petition date stamped March 11, 2009.
We do not find this version of events remotely convincing. The petition purportedly
filed in 2009 bears consecutive page numbers. None of the pages appear to be out of
order. Pages are not missing and there are no extra pages. Sentences continuing
between pages are complete and fit together.
This petition is dismissed as untimely filed. See Fla. R. App. P. 9.141(d)(5). A
certified copy of this opinion shall be provided to the Florida Department of
Corrections to be forwarded to the appropriate institution or facility for disciplinary
procedures pursuant to the rules of the Department as provided in section 944.279,
Florida Statutes (2013). The petitioner is warned that future filings deemed by this
court to be frivolous or malicious may result in further sanctions, including but not
limited to a prohibition on any further pro se appearances before this court. See Fla. R.
App. P. 9.410.
LEWIS, C.J., BENTON and MARSTILLER, JJ., CONCUR.
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