Third District Court of Appeal

State of Florida

Opinion filed April 24, 2019.

Not final until disposition of timely filed motion for rehearing.

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No. 3D18-1988

Lower Tribunal No. 96-40835A

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Demetrius Tony Johnson,

Petitioner,

vs.

The State of Florida,

Respondent.

A Case of Original Jurisdiction – Habeas Corpus.

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

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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).

The access to courts provision of the Florida Constitution – Article I, section

21 – provides an avenue for an incarcerated person in Florida to challenge the legal

basis of his or her incarceration; however, the right to proceed pro se is not

unfettered and may be forfeited if that person abuses the judicial process. Jimenez

v. State, 196 So. 3d 499, 501 (Fla. 3d DCA 2016). We are obligated to balance

Johnson’s pro se right of access to courts with this Court’s need to devote its finite

resources to legitimate petitions and appeals. We recognize the seriousness of a

sanction when the petitioner, as here, has been convicted of a crime and sentenced

to a significant prison term. Spencer, 751 So. 2d at 48. Nonetheless, “[t]his Court

has the inherent authority and duty to strike a balance between a pro se litigant’s

right to participate in the judicial process and a pro se litigant’s abuse of the

judicial process.” Jimenez, 196 So. 3d at 501.

Because we conclude that Johnson has not demonstrated good cause to

justify further pro se filings of appeals, petitions, motions, or other proceedings

with this Court, we direct the Clerk of the Third District Court of Appeal to refuse

to accept from Johnson further pro se filings related to Circuit Court case number

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96-40835; provided, however, that the Clerk may accept filings related to case

number 96-40835 if such filings have been reviewed and signed by an attorney

who is a licensed member of the Florida Bar in good standing.

Any such further and unauthorized pro se filings by Johnson will subject

him to sanctions, including the issuance of written findings forwarded to the

Florida Department of Corrections for consideration by it for disciplinary action,

pursuant to section 944.279(1) of the Florida Statutes.

Order issued.

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