Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHRISTOPHER WARD, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-2127 July 2, 2021 Appeal from the Circuit Court for Lee County; Nicholas Thompson, Judge. Christopher Ward, pro se. Ashley Moody, Attorney General, Tallahassee, and James Hellickson, Assistant Attorney General, Tampa, for Appellee. SMITH, Judge. Christopher Ward challenges the summary denial of his motion to correct scoresheet error filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and the order prohibiting him from filing further pro se motions. We affirm the denial of his rule 3.800(a) motion without further comment. However, we reverse the order barring Mr. Ward from future pro se filings because the record attached by the postconviction court does not show an abuse of process in his history of filing pro se rule 3.800(a) motions. Mr. Ward was convicted of second-degree felony murder, resisting arrest with violence, resisting arrest without violence, and two counts of battery on a law enforcement officer for offenses committed in 2003. He was sentenced in 2006 to 258.1 months in prison, followed by five years of probation, for second-degree murder and to concurrent five-year prison sentences on each of the remaining felony counts. The circumstances of the primary offense involved the death of a police officer during a high-speed, vehicular chase with Mr. Ward after he fled an attempted traffic stop. An officer's car collided with another police car during the chase, and that officer died as a result of the injuries sustained. See Ward v. State, 105 So. 3d 3, 4 (Fla. 2d DCA 2012). Although Mr. Ward has filed various postconviction motions over the years, his rule 3.800(a) motion at issue here alleged only that the victim injury and death points portion of his Criminal 2 Punishment Code (CPC) Scoresheet was improperly scored— resulting in a lowest permissible sentence (LPS) that was too high and that resulted in a higher sentence than he otherwise would have received. The postconviction court denied the motion and also ordered Mr. Ward to show cause why he should not be barred from future pro se filings based on an abuse of process for filing frivolous, successive motions, attaching certain portions of record showing a prior rule 3.800(a) motion filed by Mr. Ward. Mr. Ward responded and argued that although he had previously filed a rule 3.800(a) motion related to his scoresheet, he had never previously filed one raising the claim in the instant motion. He also set forth an explanation of how he had become aware of the cases on which he had based his claim in order to file the instant motion. After reviewing his response, the postconviction court entered the order barring Mr. Ward from future pro se filings based on an abuse of process. Having reviewed this order and the record on appeal, including those portions of the record showing Mr. Ward's prior rule 3.800(a) claims, we conclude this was error. "[D]enying a pro se litigant the opportunity to file future petitions is a serious sanction, especially where the litigant is a 3 criminal defendant who has been prevented from further attacking his or her conviction, sentence, or conditions of confinement . . . ." State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999). To achieve the best balance of a litigant's right of access to courts and the need of the courts to prevent repetitious and frivolous pleadings, it is important for courts to first provide notice and an opportunity to respond before preventing that litigant from bringing further attacks on his or her conviction and sentence. Id. This also generates a record from which an appellate court can review a decision to bar a litigant from pro se filings. Id. at 48-49. The postconviction court's order to show cause and Mr. Ward's response followed the initial procedures outlined in Spencer, and we must now examine whether the postconviction court correctly concluded that Mr. Ward had abused process by filing repetitious and frivolous pleadings where it concluded he had relitigated the same issue in successive rule 3.800(a) motions. In this regard, we note that actual successiveness within the confines of rule 3.800(a) motions—which are limited to claims of illegal sentences or scoresheet errors and may be filed at any time—requires not just the filing of a successive number of rule 3.800(a) motions but also that the issues raised within them be the same as well. 4 As noted by the Florida Supreme Court, the phrase "at any time" in rule 3.800(a) permits defendants to file successive motions under the rule. However, the doctrine of collateral estoppel bars a defendant from relitigating the same issue in a successive rule 3.800 motion. Thus "[a] defendant is collaterally estopped from bringing a successive rule 3.800(a) claim only where it has been raised previously and decided on the merits." Plasencia v. State, 170 So. 3d 865, 870 (Fla. 2d DCA 2015) (citations omitted) (first quoting State v. McBride, 848 So. 2d 287, 290 (Fla. 2003); then quoting Blackwell v. State, 65 So. 3d 1211, 1212 (Fla. 2d DCA 2011)). If, upon examination of the prior motions upon which the postconviction court concluded that this 3.800(a) motion was successive on the merits, "we are not convinced that either the postconviction court or this court has ever fully addressed the merits of" the argument raised in the instant 3.800(a) motion, then "we cannot conclude" that the claim "is barred by collateral estoppel." See id. at 871. Here, although it is clear that Mr. Ward has filed prior postconviction motions, including two rule 3.800(a) motions, the postconviction court has not supported its conclusion that Mr. Ward should be precluded from future pro se filings for filing his claim raised in the instant motion. Although the 5 postconviction court attached portions of the record showing that one of Mr. Ward's prior motions had raised an issue related to the scoring of victim injury points, that claim related to points scored for injuries sustained by the victims who survived the accident. Nothing attached by the postconviction court supports that Mr. Ward previously raised any issue related to the scoring of the victim injury points based on the victim who died. Therefore, his claim in his instant 3.800(a) motion is not successive to prior motions. The portions of the record attached to the order of the postconviction court, referenced by its orders or Mr. Ward's response, or provided as supplemental record to this court show only two prior rule 3.800(a) motions filed by Mr. Ward. Although Mr. Ward's prior motions "did not succeed, the issues raised were not successive or repetitive and they appeared to have been advanced in good faith." See Gaston v. State, 141 So. 3d 627, 628 (Fla. 4th DCA 2014). The postconviction court's record attachments support only that one prior motion raised an issue related to whether there was a sufficient basis in the jury findings to apply twelve victim injury points for the injuries of the other officers involved in the crash. No prior claims have challenged the 6 imposition of the victim injury points for the death of the officer based on the second-degree murder count in any manner. Likewise, despite our affirmance of the denial of relief in Mr. Ward's instant 3.800(a) motion, it is neither repetitive nor frivolous and appears to have been raised in good faith. See id.; see also Jordan v. State, 36 So. 3d 796, 797 (Fla. 1st DCA 2010). Nor does the record support that Mr. Ward has abused the process in the sheer number of his postconviction filings. See Gaston, 141 So. 3d at 629 ("While there is no bright line rule on the maximum number of filings a pro se litigant can make before he is barred, we do not think that the three filings in this case justify such a serious sanction."). As such, the postconviction court's order barring Mr. Ward from future pro se filings for abuse of judicial process, based on being repetitive, frivolous, and successive due to his prior 3.800(a) motions, was an abuse of discretion in this case. See id. at 628-29. Therefore, although we affirm the denial of his postconviction motion without further comment, we reverse the order barring Mr. Ward from future pro se filings. See Gaston, 141 So. 3d at 629; Jordan, 36 So. 3d at 797; see also Plasencia, 170 So. 3d at 870-71. 7 Affirmed in part; reversed in part. MORRIS, C.J., and KHOUZAM, J., Concur. Opinion subject to revision prior to official publication. 8