final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Habeas Corpus. Lower Tribunal No.
Deway Holmes, in proper person.
Moody, Attorney General, for respondent.
EMAS, C.J., and FERNANDEZ and LINDSEY, JJ.
Holmes has filed a petition for writ of habeas corpus. Holmes
concedes that his claim is time-barred under Florida Rule of
Criminal Procedure 3.850. He asserts, however, that he is
entitled to seek relief upon a claim of "manifest
injustice." He is incorrect, and we deny the petition,
as there is no error at all, let alone a manifest injustice.
Holmes contends trial counsel provided ineffective assistance
during his 1998 trial by failing to request a jury
instruction on attempted manslaughter, as a necessarily
lesser-included offense to the charge of attempted
second-degree murder. Beyond the obvious procedural defaults
which bar such a claim, the trial transcript reveals that
Holmes himself advised the trial court that he waived all
lesser-included offenses. Given Holmes' decision and his
waiver of the right to have the jury instructed on any
lesser-included offense, there was no error. See Jones v.
State, 484 So.2d 577 (Fla. 1986). We therefore deny the
petition for writ of habeas corpus.
TO SHOW CAUSE
Holmes raised this exact same claim in a prior motion to
correct illegal sentence filed with the trial court in 2015.
The trial court denied the motion, Holmes appealed, and we
affirmed. See Holmes v. State, 182 So.3d 654 (Fla.
3d DCA 2015).
further note this is at least the tenth pro se collateral
appeal or original proceeding Holmes has filed with this
Court, related to circuit court case number 97-
26076A. It appears to this Court that Holmes has
engaged in the filing of meritless, frivolous and successive
claims, continuing to seek relief from this Court on the same
claim raised in the instant petition, notwithstanding
repeated adverse determinations.
actions have caused this Court to expend precious and finite
judicial resources which could otherwise be devoted to cases
raising legitimate claims. Hedrick v. State, 6 So.3d
688, 691 (Fla. 4th DCA 2009) (noting: "A legitimate
claim that may merit relief is more likely to be overlooked
if buried within a forest of frivolous claims.") While
pro se parties must be afforded a genuine and adequate
opportunity to exercise their constitutional right of access
to the courts, that right is not unfettered. The right to
proceed pro se may be forfeited where it is determined, after
proper notice and an opportunity to be heard, that the party
has abused the judicial process by the continued filing of
successive or meritless collateral claims in a criminal
proceeding. State v. Spencer, 751 So.2d 47 (Fla.
1999). As our sister court aptly put it, there comes a point
when "enough is enough." Isley v. State,
652 So.2d 409, 410 (Fla. 5th DCA 1995).
termination of the right to proceed pro se will undoubtedly
impose a burden on a litigant who may be unable to afford
counsel, courts must strike a balance between the pro se
litigant's right to participate in the judicial process
and the courts' authority to protect the judicial process
Casey Deway Holmes is hereby directed to show cause, within
forty-five days from the date of this opinion, why he should
not be prohibited from filing with this Court any further pro
se appeals, pleadings, motions, or petitions relating to his
convictions, judgments and sentences in circuit court case
a showing of good cause, we intend to direct the Clerk of the
Third District Court of Appeal to refuse to accept any such
papers relating to circuit court case number 97-26076A unless
they have been reviewed and signed by an ...