5D01-3335 McElrath v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-3335

Case Date: 12/24/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

LLOYD McELRATH, Appellant, v. STATE OF FLORIDA, Appellee. / Opinion filed December 28, 2001 3.800 Appeal from the Circuit Court for Sumter County, William T. Swigert, Sr., Judge. Lloyd McElrath, Clermont, pro se. Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee. PLEUS, J. Lloyd McElrath appeals the trial court's order summarily denying his Rule 3.800(a) motion. We affirm in part and reverse in part. The trial court determined that McElrath's motion was "successive and procedurally barred." The court also ruled that McElrath should be prohibited from filing further pro se motions seeking collateral relief in the instant case, noting that such future filings could result in contempt of court and subject him to punishment including forfeiture of gain time. Case No. 5D01-3335

On the merits, we agree that McElrath is not entitled to relief as his instant motion is indeed "successive and procedurally barred." However, we conclude that the court erred in prohibiting him from filing any further pro se collateral motions as there is no indication that the court first provided him notice and an opportunity to respond before ordering such prohibition. See State v. Spencer, 751 So. 2d 47 (Fla. 1999). Nothing on the face of the order reflects compliance with Spencer. Accordingly, we affirm on the merits but reverse and remand to ensure the trial court's compliance with Spencer on the issue of prohibiting future pro se post-conviction motions from McElrath. If the court has, in fact, already provided McElrath prior notice and an opportunity to be heard before prohibiting him from filing future pro se post-conviction motions, it can so state in a corrected order. If, however, the court has not provided the requisite hearing, it must do so according to Spencer. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PETERSON and SAWAYA, JJ., concur.

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