Coney v. State

995 So. 2d 1038, 2008 WL 4865029
District Court of Appeal of Florida·Decided November 12, 2008·No. 4D08-3343·Published·Cited by 4 cases

Opinion

995 So.2d 1038 (2008)

Earl CONEY, Appellant,
v.
STATE of Florida, Appellee.

No. 4D08-3343.

District Court of Appeal of Florida, Fourth District.

November 12, 2008.

*1039 Earl Coney, Raiford, pro se.

No appearance required for appellee.

PER CURIAM.

Despite numerous warnings, appellant has repeatedly initiated frivolous proceedings in this court. Today, after having provided an opportunity to respond, we impose the sanction of no longer accepting appellant's pro se filings.

Earl Coney has a long history of initiating meritless proceedings. We have previously cautioned him that his pattern of filing meritless, repetitive, and misleading proceedings could result in sanctions. See Coney v. State, 962 So.2d 351 (Fla. 4th DCA 2007). In addition to this reported admonition, this court has on other occasions warned Coney about his abuse of the judicial process. In fact, in another case, this court ordered Coney to show cause why he should not be sanctioned. There he promised to stop his relentless filing, and we decided against imposing sanctions. Nonetheless, he has continued to abuse the judicial process.

A history of this case and Coney's prior proceedings demonstrate that today's sanction is necessary. This appeal concerns the denial of a "Motion to Define or Clarify Sentence." The trial court denied this motion without prejudice for Coney to properly seek relief through the Department of Corrections (DOC). The trial court explained that Coney could not challenge, in this manner, the DOC's application of gain time or its calculation of his release date. See Bush v. State, 945 So.2d 1207, 1211 (Fla.2006). The trial court's order advised Coney how he could properly pursue this claim.[1]

Although Coney raised no basis for challenging the trial court's legally correct ruling, or the legal advice the trial court graciously provided, he filed this appeal. After this court ordered Coney to show cause why sanctions should not be imposed, we received his notice of voluntary dismissal of this appeal. At the same time, he filed an Emergency Petition for Writ of Habeas Corpus in case number 4D08-3681, alleging an entitlement to immediate release, and raising precisely the same claim he argued in this motion. We reviewed the petition and found it failed to establish a basis for relief, but transferred the petition to the appropriate venue. See Bush, 945 So.2d at 1213 n. 11; § 79.09, Fla. Stat. (2007), see, e.g., Vierra v. State, 980 So.2d 588 (Fla. 2d DCA 2008).

Coney has repeatedly claimed that he is illegally incarcerated and entitled to immediate release. These serious allegations receive expedited consideration because *1040 this court strives to prevent any person from being illegally deprived of even a single day of liberty. In every one of these cases, however, Coney's allegations of illegal detention proved to be without merit.[2]

This appeal, and the petition in 4D08-3681, are the sixth and seventh proceedings Coney has initiated in this court this year. In June 2008, Coney filed an Emergency Petition for Writ of Mandamus in case number 4D08-2537 alleging that he should not be incarcerated because he was entitled to additional credit for time served, but the trial court had not yet ruled on his rule 3.800(a) motion. Even though the 3.800(a) motion had been pending only a short time, because of the allegation of an illegal deprivation of liberty, we ordered an expedited response from the state, which in turn caused the trial court to consider and rule on the motion on an expedited basis. We cautioned Coney that he would be referred to prison officials for disciplinary procedures if his petition was false or frivolous. See § 944.279(1), Fla. Stat. (2007).

In ruling on the rule 3.800(a) motion, the trial court found that Coney had failed to establish that he was entitled to any additional credit for time served.[3] The trial court again advised Coney that his abusive filing was interfering with the administration of justice and could result in sanctions.

Coney then appealed the denial of that rule 3.800(a) motion, leading to case number 4D08-3018. Again, Coney presented no viable basis for challenging the trial court's legally correct ruling. The documents Coney relied on in support of his motion pertained to unrelated cases and did not show when he was imprisoned for the charges in these cases. The appeal in 4D08-3018 was the fifth proceeding Coney brought in this court in 2008. This court decided not to impose sanctions in that case because Coney had been admonished by the trial court, and it was hoped that further sanctions would not be necessary.

Coney also filed a petition for writ of habeas corpus in 4D08-1166, which raised unexplained allegations of prosecutorial misconduct and alleged perjury. The petition attempted to bring an untimely challenge to his convictions in these seven cases and was an improper attempt to avoid the procedural bars preventing Coney from filing successive and untimely postconviction motions.

Coney filed a mandamus petition in 4D08-458 in order to compel a trial court ruling on a rule 3.850 motion that challenged a conviction in a separate case for tampering with a witness. The trial court denied the 3.850 motion which raised the frivolous claim that the conviction must be vacated because a probable cause affidavit was not properly sworn. Coney appealed the denial of that motion in case number 4D08-2229, and this court affirmed. See Coney v. State, 987 So.2d 1226 (Fla. 4th DCA 2008).

In addition to the seven cases he has brought this year, Coney previously initiated *1041 a blizzard of filings in 2006 and 2007. This court affirmed Coney's pro se direct appeal with an opinion in case number 4D05-3304. See Coney v. State, 941 So.2d 592 (Fla. 4th DCA 2006). After this court relinquished jurisdiction for the trial court to rule on Coney's rule 3.800(b)(2) motion, and the trial court denied that motion, Coney filed a notice of appeal which resulted in case number 4D06-2312. That appeal was consolidated with his direct appeal.

Next, Coney then filed a rule 3.800(a) motion alleging a double jeopardy violation. The trial court denied the motion. Coney appealed in case number 4D06-1038, and this court affirmed. See Coney v. State, 928 So.2d 354 (Fla. 4th DCA 2006). Coney presented no support for his claim that the suspension of his driver's license in 2002 and 2003 was a double jeopardy violation. These suspensions were based on two separate statutory grounds. The double jeopardy claim was clearly without merit and expressly contrary to law. § 322.264(2), Fla. Stat. (2001); see Webb v. State, 816 So.2d 1190 (Fla. 4th DCA 2002).

Coney then filed a rule 3.850 motion alleging that the trial court improperly convicted him of grand theft of a motor vehicle in 2002 because the information allegedly cited the wrong statute. He appealed the summary denial of this claim in case number 4D06-3339. The information cited the correct statute, but Coney argued that the failure to cite the specific subsection deprived the trial court of jurisdiction. He also argued that the charging documents in these cases were insufficient because they failed to state the color, make and model of the vehicles stolen. Coney argued that the charges failed to state "the species" of the cars he stole, so they completely failed to charge a crime, constituting fundamental error. His challenge to the pleas he

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Coney v. State, 995 So. 2d 1038, 2008 WL 4865029 (Fla. Ct. App. 2008).

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