Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-4535 _____________________________ JODY JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Suwannee County. Mark E. Feagle, Judge. March 30, 2021 B.L. THOMAS, J. Appellant appeals the denial of a rule 3.850 motion for postconviction relief. For the reasons outlined below, we affirm the trial court’s ruling. We also find that Appellant has repeatedly engaged in frivolous, abusive litigation, and we provide the underlying facts of the case to place this in context, because this Court did not issue a written opinion on direct appeal. See Johnson v. State, 23 So. 3d 715 (Fla. 1st DCA 2009). In 2006, Appellant was charged by amended information with lewd or lascivious molestation of a child under the age of twelve. In a deposition, the victim, Appellant’s niece, stated that on the night of the incident, she woke up in the middle of the night to something hurting her in her “front private area.” She saw Appellant sitting on her bed, and his hand had apparently been under her clothes. The victim stated she screamed, and Appellant fled the room. A confrontation ensued between Appellant and the victim’s father, and the victim told her mother the specifics of what happened. At the trial, Williams rule evidence was admitted that indicated Appellant had assaulted two other minor victims in 1993 and 1997. Appellant had been in a familial relationship with both of the prior victims. The victims were female and of the same age as the victim in Appellant’s underlying criminal case, and the attacks occurred around the same time of day. A jury convicted Appellant as charged. This Court affirmed Appellant’s conviction and sentence, with a mandate issuing December 30, 2009. See Johnson v. State, 23 So. 3d 715 (Fla. 1st DCA 2009). Appellant filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, claiming that the charging document filed against him was defective and “fraudulent” because the prosecutor did not file an affidavit or any sworn testimony of a material witness. Appellant argued that because of this, the trial court lacked jurisdiction over him, and he was entitled to have his sentence vacated. The trial court denied Appellant’s motion as untimely, successive, and meritless. More specifically, because Appellant was not attacking the trial court’s jurisdiction, but the validity of the charging document, he could raise this claim only within the procedural timeframes of rule 3.850. Further, Appellant had previously filed multiple rule 3.850 postconviction motions, and under Florida Rule of Criminal Procedure 3.140, Appellant could not challenge an information based on it being unsigned or unverified. Appellant appealed the trial court’s denial of his motion. A defendant alleging a defect in a charging document must show actual prejudice. Bradley v. State, 971 So. 2d 957, 960 (Fla. 5th DCA 2007). A fundamental defect in an information can support a challenge to a court’s subject matter jurisdiction. Carbajal v. State, 75 So. 3d 258, 262 (Fla. 2011). However, a challenge to an information on the ground that it was not supported by probable cause or sworn testimony from a material witness does not raise a fundamental defect and, therefore, must be timely raised. See Edwards v. State, 128 So. 3d 134, 135 (Fla. 2 1st DCA 2013). Further, the prosecutor who signs a charging document need not personally take an oath or take testimony from a material witness before filing the charging document. See State v. Hartung, 543 So. 2d 236, 237 (Fla. 5th DCA 1989). Therefore, Appellant has not raised a timely claim, as his convictions and sentence became final on December 30, 2009. The motion itself is completely meritless, and the trial court did not err in denying Appellant’s motion. We note from this Court’s records that Appellant has repeatedly filed meritless motions for postconviction relief. The matter before us is a textbook case of an abusive and vexatious litigant. Appellant has filed no fewer than ten cases in this Court, not including this appeal. He has not obtained relief in any of these cases, and his current appeal is frivolous. Our examination of these cases reveals a history of filing repetitious and frivolous postconviction appeals. Appellant has also engaged in extensive postconviction filings at the trial court level that have consumed valuable time and court resources. The courts have a responsibility to ensure every citizen’s right of access to the courts. See Peterson v. State, 817 So. 2d 838, 840 (Fla. 2002); In re McDonald, 489 U.S. 180, 184 (1989) (“Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.”) Allowing unlimited frivolous filings burdens the public and the victims, who have an entitlement to finality. See Witt v. State, 387 So. 2d 922, 925 (Fla. 1980) (noting that “an absence of finality casts a cloud of tentativeness over the criminal justice system, benefiting neither the person convicted nor society as a whole”). Because frivolous motions and petitions use limited judicial resources, placing an unnecessary burden on the courts and the public, a bar on pro se filing is sometimes required for the “protection of the rights of others to have the Court conduct timely reviews of their legitimate filings.” Pettway v. McNeil, 987 So. 2d 20, 22 (Fla. 2008); see also Peterson, 817 So. 2d at 840 (“This Court has a responsibility to ensure every citizen’s right of access to the courts. . . . A limitation on [the petitioner’s] ability to file would further the constitutional right to access for other litigants because 3 it would permit this Court to devote its finite resources to the consideration of legitimate claims filed by others.”). This Court has the inherent authority to sanction an abusive litigant whose pattern of frivolous and repetitive filings consume scarce judicial resources and delay the resolution of legitimate filings. See Armstead v. State, 817 So. 2d 841, 842 (Fla. 2002); Hall v. State, 94 So. 3d 655, 656 (Fla. 1st DCA 2012). Accordingly, pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999), Appellant shall show cause within twenty days of issuance of this Court’s mandate in the case why sanctions should not be imposed on him, including a prohibition on further pro se filings in this Court related to the judgment and sentence in Suwannee County Circuit Court Case No. 2006-CF-416 and a referral of this matter to the Department of Corrections for disciplinary action under section 944.279, Florida Statutes. AFFIRMED. WINOKUR and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jody Johnson, pro se, Appellant. Ashley Moody, Attorney General, and Benjamin Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 4