The opinion
Third District Court of Appeal
State of Florida
Opinion filed September 6, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1698
Lower Tribunal No. 99-41138A
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Willie Brown,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Richard Hersch, Judge.
Willie Brown, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before LAGOA, SCALES, and LUCK, JJ.
LAGOA, J.
Appellant, Willie Brown (“Brown”), appeals from an order granting his
Motion to Correct Illegal Sentence. We dismiss the appeal as this Court lacks
jurisdiction to entertain an appeal taken by defendant from an order granting relief
under Florida Rule of Criminal Procedure 3.800.
On June 19, 2017, Brown filed a Motion to Correct Illegal Sentence
pursuant rule 3.800(a)(1). On June 21, 2017, the trial court granted Brown’s
motion and corrected Brown’s sentence to reflect his designation as a Prison
Releasee Reoffender (P.R.R.) only as to Count I, and struck his Habitual Violent
Felony Offender (H.V.O.) designation in Count I. Brown filed a notice of appeal
regarding the trial court’s June 21, 2017, order.
Florida Rule of Appellate Procedure 9.140(b)(1)(D) provides that:
(1) Appeals Permitted. A defendant may appeal
....
(D) orders entered after final judgment or
finding of guilt, including orders revoking or
modifying probation or community control,
or both, or orders denying relief under
Florida Rule of Criminal Procedure
3.800(a), 3.801, 3.850, 3.851, or 3.853.
(Emphasis added).
Here, the trial court’s June 21, 2017, order granted Browm’s rule 3.800
motion. As such, the order is not an appealable order pursuant to rule
9.140(b)(1)(D), and we therefore dismiss the appeal for lack of jurisdiction.1
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Dismissed.
1 Our review of Brown’s Initial Brief shows that the brief did not address
any of the issues raised in his motion to correct illegal sentence. Instead, Brown
argued that the trial court erred in giving a non-standard jury instruction and erred
in giving a modified Allen charge and then a full Allen charge. It therefore
appears that Brown used the trial court’s June 21, 2017, order to reargue matters
previously heard and considered by this Court in case number 3D16-1989. See
Brown v. State, No. 3D16-1989 (Fla. 3d DCA Dec. 14, 2016). “While we
recognize that incarcerated persons must be provided with the full panoply of
procedural vehicles with which to challenge the lawfulness of their incarceration,
the constitutional right of access to the courts is not unfettered. The right to
proceed pro se will be forfeited where a party abuses the judicial process by the
continued filing of ‘successive motions which have been heard, considered,
rejected, and then raised again.’” Roberts v. State, No. 3D17-421, 2017 WL
3044671, at *1 (Fla. 3d DCA July 19, 2017) (citations omitted).
We caution Brown that any further abuse of the judicial process may subject
him to the issuance of an order to show cause why he should not be prohibited
from filing further pro se appeals, petitions, motions or other pleadings in this
Court relating to lower tribunal case number F99-41138(A), as well as to the
issuance of written findings forwarded to the Department of Corrections for its
consideration of disciplinary action, including the forfeiture of gain time. See §
944.279(1), Fla. Stat. (2017); Minor v. State, 963 So. 2d 797 (Fla. 3d DCA 2007).
3