Florida Case Law
SCHMIDT v. MCDONOUGH, SC01-2252 (Fla. 12-21-2006) DAN
SCHMIDT, Petitioner, v. JAMES R. MCDONOUGH, etc.,
Respondent. Case No. SC01-2252. Supreme Court of Florida.
December 21, 2006.
Original Proceeding — Mandamus.
Daniel Kevin Schmidt, pro se, Crestview, Florida, for
Petitioner.
Charles J. Crist, Jr., Attorney General, and Joy A. Stubbs,
Assistant Attorney General, Tallahassee, Florida, for
Respondents.
PER CURIAM.
This case is before the Court on Dan Schmidt’s petition for
writ of mandamus. We have jurisdiction. See art. V,
§ 3(b)(8), Fla. Const. For reasons explained below,
we deny the petition.
I. FACTS
Schmidt was convicted of a criminal offense and was
sentenced to a term of imprisonment. He subsequently filed
a mandamus petition in circuit court contesting a
disciplinary report wherein he was disciplined for
disobeying an order concerning the use of a computer in his
computer class. He sought return of sixty days gain time
and reinstatement into the class. After the court issued an
order requiring him to pay a filing fee or to comply with
the prisoner indigency statute, section 57.085, Florida
Statutes (2001), he filed a motion to exempt his petition
from the filing fee requirement. The court denied the
motion, and he filed a prohibition petition in district
court seeking to bar the circuit court from dismissing his
petition. The district court dismissed his prohibition
petition after he failed to respond to the court’s order to
pay a filing fee for the district court proceeding, and the
circuit court dismissed his mandamus petition after he
failed to comply with that court’s order to pay a filing fee
or to comply with section 57.085.
Schmidt appealed the circuit court ruling, and the district
court issued an order requiring him to pay an appellate
filing fee or to comply with either section 57.081, Florida
Statutes (2001), or section 57.085. Schmidt then filed in
this Court the present mandamus petition seeking to bar the
district court from dismissing his appeal. Several days
later, the district court dismissed his appeal after he
failed to respond to its order to pay a filing fee. This
Court issued an order staying the proceedings in this Court
pending resolution of Schmidt’s mandamus petition in a
different case, wherein the Court ultimately ruled that a
prisoner’s mandamus petition challenging the loss of gain
time is a “collateral criminal proceeding” and is exempt
from the prepayment and lien requirements of section
57.085. See Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003).
After Schmidt was decided, the Court issued an order in the
present case asking the State to respond to Schmidt’s
current petition. The State now has responded, and Schmidt
has replied.
Schmidt claims he is not required to comply with the
certification requirements of section 57.081 or the
prepayment and lien requirements of section 57.085. He also
claims that a “mixed” petition — a petition where a
civil claim is piggy-backed onto a gain time claim —
is exempt from the prepayment and lien requirements of the
prisoner indigency statute. The State, on the other hand,
contends that Schmidt was wrongly decided and should be
overruled.
II. THE APPLICABLE LAW
A. The Indigency Statutes
While some prisoner filings, such as habeas petitions,
generally may be filed free of filing fees and other court
costs, many prisoner filings are subject to such costs.
See, e.g., §§ 34.041, 35.22, Fla. Stat.
(2005). Both the general indigency statute, section 57.081,
and the prisoner indigency statute, section 57.085, apply
only to those filings that are not free of costs.
Florida’s general indigency statute, section 57.081, was
enacted in 1937 and contains a certification requirement
for indigents:
57.081. Costs; right to proceed where prepayment of costs
waived
(1) Any indigent person, except a prisoner as defined in
s. 57.085, who is a party or intervenor in any judicial or
administrative agency proceeding or who initiates such
proceeding shall receive the services of the courts . . .
with respect to such proceedings, despite his or her
present inability to pay for these services. . . .
Prepayment of costs to any court . . . is not required in
any action if the party has obtained in each proceeding a
certification of indigence in accordance with s. 27.52 or
s. 57.082.[fn1]
§ 57.081, Fla. Stat. (2005) (emphasis added). Thus,
under this statute, if a person is certified as indigent,
the prepayment of costs is “waived.”
The prisoner indigency statute, section 57.085, on the
other hand, was enacted in 1996 and was intended to
supplant the general indigency statute for most purposes
where prisoners’ civil filings are concerned, see ch.
96-106, at 92-93, Laws of Fla. The statute provides as
follows in relevant part:
57.085. Deferral of prepayment of court costs and fees
for indigent prisoners. —
(1) For the purposes of this section, the term “prisoner”
means a person who has been convicted of a crime and is
incarcerated for that crime or who is being held in
custody pending extradition or sentencing.
(2) When a prisoner who is intervening in or initiating a
judicial proceeding seeks to defer the prepayment of court
costs and fees because of indigence, the prisoner must
file an affidavit of indigence with the appropriate clerk
of the court. The affidavit must contain complete
information about the prisoner’s identity; the nature and
amount of the prisoner’s income; all real property owned
by the prisoner; all tangible and intangible property
worth more than $100 which is owned by the prisoner; the
amount of cash held by the prisoner; the balance of any
checking, savings, or money market account held by the
prisoner; the prisoner’s dependents, including their names
and ages; the prisoner’s debts, including the name of each
creditor and the amount owed to each creditor; and the
prisoner’s monthly expenses. The prisoner must certify in
the affidavit whether the prisoner has been adjudicated
indigent under this section, certified indigent under s.
57.081, or authorized to proceed as an indigent under 28
U.S.C. s. 1915 by a federal court. The prisoner must
attach to the affidavit a photocopy of the prisoner’s
trust account records for the preceding 6 months. . . .
. . . .
(4) When the clerk has found the prisoner to be indigent
but concludes the prisoner is able to pay part of the
court costs and fees required by law, the court shall
order the prisoner to make, prior to service of process,
an initial partial payment of those court costs and fees.
The initial partial payment must total at least 20
percent of the average monthly balance of the prisoner’s
trust account for the preceding 6 months. . . .
(5) When the clerk has found the prisoner to be indigent,
the court shall order the prisoner to make monthly
payments of no less than 20 percent of the balance of the
prisoner’s trust account as payment of court costs and
fees. When a court orders such payment, the Department of
Corrections or the local detention facility shall place a
lien on the inmate’s trust account for the full amount of
the court costs and fees, and shall withdraw money
maintained in that trust account and forward the money,
when the balance exceeds $10, to the appropriate clerk of
the court until the prisoner’s court costs and fees are
paid in full.
. . . .
(10) This section does not apply to a criminal proceeding
or a collateral criminal proceeding.
§ 57.085, Fla. Stat. (2005) (emphasis added). Thus,
under this statute, if a prisoner is found to be indigent,
the prepayment of costs is not waived but “deferred”
— the prisoner is required to make an initial
partial prepayment, if able to do so, and then a lien is
placed on his or her prison account for payment of the
remainder in monthly installments.
B. Schmidt v. Crusoe
Before Schmidt filed his petition in the present case, he
filed a petition in the case that ultimately resulted in
the Court’s decision in Schmidt v. Crusoe, 878 So. 2d 361
(Fla. 2003). The relevant facts there were as follows:
Schmidt is serving a criminal sentence and was
disciplined for allegedly having lied to prison staff. As
punishment, the Department of Corrections forfeited a
portion of the gain time that Schmidt had already earned
as a reduction to this sentence. Schmidt filed a mandamus
petition in the circuit court contesting the forfeiture.
The circuit court sought a filing fee or an affidavit of
indigency and a printout of Schmidt’s inmate account
pursuant to the Prisoner Indigency Statute. See §
57.085, Fla. State. (2002). Schmidt responded that he was
not subject to these requirements because his petition
was not a civil lawsuit, but rather was a “collateral
criminal proceeding” exempted under the statute. See
§ 57.085(10), Fla. Stat. (2002). When the circuit
court rejected this contention, Schmidt sought review by a
petition for writ of prohibition in the First District
court of Appeal. The district court also invoked the
statute and advised Schmidt that his case would be
dismissed if compliance or a filing fee was not
forthcoming. Schmidt then filed a petition in this Court,
and we stayed proceedings pending consideration of the
merits of his petition and the responses thereto.
Schmidt v. Crusoe, 878 So. 2d at 362.
After reviewing both the comparable federal precedent and
the legislative history of Florida’s prisoner indigency
statute, the Court concluded that the Florida statute was
enacted to discourage the filing of frivolous civil
lawsuits involving challenges to prison conditions, “but
not to prevent the filing of claims contesting the
computation of criminal sentences.” See Schmidt, 878 So. 2d
at 366. The Court held as follows:
In the instant case, Schmidt’s loss of gain time
effectively lengthened his sentence, since by the
Department of Corrections’ action he now has to serve that
additional time in prison. Therefore, we agree, in accord
with the authorities discussed above, that his gain time
challenge should be considered a “collateral criminal
proceeding,” and the Prisoner Indigency Statute should not
apply. To hold otherwise would result in an unlawful ”
`chilling’ of a criminal defendant’s right to appeal or
otherwise challenge the propriety or constitutionality of
the conviction or sentence,” Geffken v. Strickler, 778
So. 2d 975, 977 n. 5 (Fla. 2001), and raise a serious
issue as to criminal defendants’ constitutional rights of
access to the courts to challenge their sentences.
Schmidt, 878 So. 2d at 367 (footnote omitted).
III. THE PRESENT CASE
In the present case, Schmidt asks the Court to compel the
district court to reinstate his appeal. First, he claims
that he is not required to comply with the certification
requirements of section 57.081 or the prepayment and lien
requirements of section 57.085 because his underlying
mandamus petition is a “collateral criminal proceeding” and
is in the nature of a habeas petition. We agree, but only in
part. As for this claim with respect to section 57.085,
Schmidt is correct concerning the gain time issue. As noted
above, the Court in Schmidt held that a mandamus petition
challenging the revocation of gain time is a “collateral
criminal proceeding” and is exempt from the prepayment and
lien requirements of section 57.085. However, as for
Schmidt’s claim with respect to section 57.081, he is
incorrect concerning the gain time issue. The Court in
Schmidt expressly limited its “collateral criminal
proceeding” ruling to the prisoner indigency statute and
did not include the general indigency statute:
[W]e grant the petition and hold that an inmate’s
petition for writ of mandamus challenging a loss of gain
time is a collateral criminal proceeding and not a civil
lawsuit as contemplated by the Prisoner Indigency Statute.
Schmidt, 878 So. 2d at 361-62 (emphasis added). In fact, the
Court in footnote 7 specifically stated that the general
indigency statute, section 57.081, is applicable to gain
time claims such as Schmidt’s:
Because the Prisoner Indigency Statute (section 57.085)
does not apply herein, the general indigency statute
(section 57.081) does. That means that if Schmidt still
seeks to proceed in forma pauperis, he must prove his
inability to pay by filing an affidavit with the
information required according to section 57.081. See
§ 57.081(a), Fla. Stat. (2001).
Schmidt, 878 So. 2d at 367 n. 7.
Schmidt’s argument that footnote 7 conflicts with the plain
language of section 57.081, which excepts prisoners’
filings from its scope, also lacks merit. The language in
section 57.081 excepting prisoners’ filings applies only to
those filings that are otherwise subject to the prepayment
and lien requirements of section 57.085, which is not the
situation in the present case:
(1) Any indigent person, except a prisoner as defined in
s. 57.085, who is a party or intervenor in any judicial or
administrative agency proceeding or who initiates such
proceeding shall receive the services of the courts . . .
with respect to such proceedings, despite his or her
present inability to pay for these services. . . .
Prepayment of costs to any court . . . is not required in
any action if the party has obtained in each proceeding a
certification of indigence in accordance with s. 27.52 or
s. 57.082.
§ 57.081, Fla. Stat. (2005) (emphasis added). This
construction of the above provision is supported by the
enacting legislation. See ch. 96-106, §§ 1-2,
at 92-95, Laws of Fla. (amending the general indigency
statute to include the above exception and simultaneously
creating the prisoner indigency statute).
Next, Schmidt claims that a “mixed” petition — a
petition where a civil claim is piggy-backed onto a gain
time claim — is exempt from the prepayment and lien
requirements of the prisoner indigency statute. This claim,
however, also lacks merit. The Court’s reasoning in Schmidt
that gain time claims are “collateral criminal proceedings”
that are exempt from the requirements of the prisoner
indigency statute was based on the practical effect that
gain time claims have on the length of time an inmate
actually serves in prison. That reasoning is inapplicable
to civil claims, such as Schmidt’s present claim that he is
entitled to be reinstated into the prison computer class,
which are unrelated to the length of time an inmate serves
in prison. Also, exempting “mixed” petitions from the
requirements of the prisoner indigency statute would
violate the plain language of section 57.085, which
provides for a single exception to its prepayment and lien
requirements: “This section does not apply to a criminal
proceeding or a collateral criminal proceeding.” §
57.085 (10), Fla. Stat. (2005). The statute makes no
exception for prisoners’ civil claims, whether standing
alone or piggy-backed onto gain time claims. Further, the
original purpose of section 57.085 was to discourage the
filing of frivolous civil claims by prisoners, see ch.
96-106, preamble, at 92-93, Laws of Fla. If the Court were
to hold that “mixed” petitions are exempt from the
prepayment and lien requirements of section 57.085, such a
ruling would undermine that purpose by inviting the filing
of frivolous civil claims that are piggy-backed onto gain
time claims. Finally, we reject the State’s claim that
Schmidt should be overruled; the State’s complaint that
language in the decision may be read as inviting prisoners
to file frivolous civil claims under the rubric of Schmidt
has been addressed above.
IV. CONCLUSION
Based on the foregoing, we hold that the filing of a
mandamus petition raising a gain time claim is not free of
costs, and that although such petitions are exempt from the
prepayment and lien requirements of the prisoner indigency
statute, section 57.085, they continue to be subject to the
certification requirements of the general indigency
statute, section 57.081. We also hold that “mixed”
petitions — petitions where civil claims are
piggy-backed onto gain time claims — are not exempt
from the prepayment and lien requirements of the prisoner
indigency statute.
In the present case, although Schmidt’s gain time claim is
exempt from the prepayment and lien requirements of the
prisoner indigency statute, the claim remains subject to
the certification requirements of the general indigency
statute. Furthermore, because the underlying mandamus
petition in this case is a “mixed” petition, containing both
a gain time claim and a civil claim, the petition itself is
subject to the prepayment and lien requirements of the
prisoner indigency statute. Accordingly, we deny Schmidt’s
present petition.
It is so ordered.
LEWIS, C.J., and ANSTEAD, PARIENTE, CANTERO, and BELL, JJ.,
concur. WELLS, J., concurs in part and dissents in part
with an opinion, in which QUINCE, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
[fn1] Both sections 27.52 and 57.082 provide that a person
seeking relief from the payment of court costs due to
inability to pay must apply to the clerk of court for a
determination of indigency status and the application must
include the following information:
1. Net income, consisting of total salary and wages,
minus deductions required by law, including court-ordered
support payments.
2. Other income, including, but not limited to, social
security benefits, union funds, veterans’ benefits,
workers’ compensation, other regular support from absent
family members, public or private employee pensions,
unemployment compensation, dividends, interest, rent,
trusts, and gifts.
3. Assets, including, but not limited to, cash, savings
accounts, bank accounts, stocks, bonds, certificates of
deposit, equity in real estate, and equity in a boat or a
motor vehicle or in other tangible property.
4. All liabilities and debts.
§§ 27.52(1), 57.082(1), Fla. Stat. (2005).
Section 27.52(1) contains an additional provision 5: “If
applicable, the amount of any bail paid for the applicant’s
release from incarceration and the source of the funds.”
WELLS, J., concurring in part and dissenting in part.
I concur that Schmidt’s petition is subject to the
prepayment and lien requirements of the prisoner indigency
statute.
I dissent to the majority’s determination that we have
jurisdiction in this case. As I stated in my dissent in
Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003), that case
was not properly before this Court as a writ of mandamus,
and the deciding of that case as a writ has proven to have
various problems in administration. See Bush v. State, No.
SC04-2306 (Fla. Dec. 21, 2006). I do not believe we should
keep open this type of jurisdiction, and I do not
understand how the present case is properly before this
Court on a writ of mandamus.
QUINCE, J., concurs.