Third District Court of Appeal

State of Florida 

Opinion filed November 24, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1799

Lower Tribunal No. F09-40479

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Rafael Toirac-Aguilera,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marisa 

Tinkler Mendez, Judge.

Rafael Toirac-Aguilera, in proper person.

Ashley Moody, Attorney General, for appellee.

Before EMAS, LINDSEY and GORDO, JJ. 

PER CURIAM.
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Rafael Toirac-Aguilera appeals the trial court’s order barring him from 

further pro se filings without a signature from a member of the Florida Bar. 

We have jurisdiction. See Fla. R. App. P. 9.140(b). Because we find the 

trial court’s order did not furnish the requisite notice before imposing this 

sanction, we reverse and remand.1

 

Following Toirac-Aguilera’s filing of repetitive, successive 

postconviction pleadings, the State moved for an order to show cause why 

he should not be held in contempt of court and be prohibited from any further 

pro se filings. The trial court found probable cause to believe Toirac-Aguilera 

had filed frivolous and successive motions and abused the judicial system 

with repeated filings. On June 14, 2021, the court ordered Toirac-Aguilera 

to show cause why he should not be held in contempt of court for filing 

successive and frivolous pleadings and reset the matter for 45 days. ToiracAguilera moved for an extension of time to file a response to the show cause 

order contending he received the order on July 7, 2021. He placed said 

motion for enlargement of time in the hands of prison officials on July 23, 

2021, and it was docketed on August 2, 2021. On August 5, 2021, the matter 

1 Nothing in this opinion shall serve as an adjudication on the merits nor 

should it be construed to prevent the trial court from exercising its discretion 

in issuing a Spencer order providing the defendant with proper notice and an 

opportunity to be heard. 
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came before the court. The court, not having received any response to the 

order to show cause, imposed sanctions barring Toirac-Aguilera from filing 

further pro se pleadings, motions and petitions relating to his conviction and 

sentence. The court did not rule on the request for extension of time; we 

note, however, that there is nothing in the record to indicate the court was 

aware of the filing of the defendant’s motion.

We write to address two specific issues with respect to the order to 

show cause issued in this case. First, while the State sought both to have 

Toirac-Aguilera held in contempt and barred from further pro se filings, the 

trial court only ordered that the defendant show cause why he should not be

held in contempt of court. It is clear from the court’s findings regarding 

Toirac-Aguilera’s successive and frivolous motions that the court fully 

intended to issue a Spencer2 order. A Spencer order requires that courts 

furnish notice before restricting litigants from filing pro se pleadings with the 

court based upon a litigant’s egregious abuse of the judicial process. 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 

2 State v. Spencer, 751 So. 2d 47 (Fla. 1999).
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from bringing further attacks on his or her conviction and sentence.”). The 

court’s order, however, did not direct Toirac-Aguilera to show cause why he 

should not be prohibited from filing any further pro se pleadings, motions or 

petitions relating to his conviction and sentence. As such, the court’s order 

did not furnish the requisite notice that Toirac-Aguilera would be barred from 

pro se filings before imposing sanctions.

Second, we clarify that curbing a pro se litigant’s abuse of the judicial 

process by precluding pro se filing is not the same as finding him in contempt. 

The court’s order placed the defendant on notice that he was facing 

contempt, but failed to specify whether it was civil or criminal contempt. 

“[T]he purpose of criminal contempt . . . is to punish.” Parisi v. Broward 

County, 769 So. 2d 359, 364 (Fla. 2000) (quoting Bowen v. Bowen, 471 So.

2d 1274, 1277 (Fla. 1985). “[C]riminal contempt is ‘a crime in the ordinary 

sense’” and may subject the defendant to further imprisonment. Id. (quoting 

Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826

(1994). While the court here did not ultimately find Toirac-Aguilera in 

contempt, the sanctions order failed to conform to the sanctions 

contemplated in the order to show cause. 

Reversed and remanded.