                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

JONATHAN LEWIS,                        NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D12-5677 and 1D12-5678

FLORIDA DEPARTMENT OF
CORRECTIONS,

      Appellee.

_____________________________/

Opinion filed August 1, 2014.

An appeal from the Circuit Court for Bradford County.
Toby S. Monaco, Judge.

Jonathan Lewis, Appellant.

Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney
General, Office of the Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      Jonathan Lewis, an inmate, appeals orders dismissing two negligence actions

because he did not pay the filing fees. We reverse and remand, because the trial

court directed appellant to comply with a portion of section 57.085(7), Florida

Statutes (2012), that has been declared unconstitutional.
      After appellant asked the lower court to find that he was indigent and to

waive court costs,1 the court determined that appellant had been adjudicated

indigent under section 57.081, Florida Statutes (2012), twice in the preceding three

years, and thus directed him pursuant to section 57.085(7) to submit a listing of

each suit, action, claim, proceeding, or appeal that he had brought in the preceding

five years, and to attach a copy of each of these documents and a record of the

disposition of each.

      Appellant did not comply with the lower court’s order, and instead filed

various motions asking the lower court to dispense with these requirements

because of the large amount of paperwork involved and the cost, and because the

clerk of the court could print out such information from a website. The lower court

denied appellant’s motions to be declared indigent and directed him to pay the

filing fees within thirty days. When Appellant did not pay the filing fees, the court

dismissed his lawsuits. This was error.

      The Florida Supreme Court had held the copying requirement in section

57.085(7) to be unconstitutional. Jackson v. Department of Corrections, 790 So. 2d

381, 386 (Fla. 2000); Mitchell v. Moore, 786 So. 2d 521 (Fla. 2001). We cannot


1
  Because appellant’s lawsuits are negligence actions rather than collateral criminal
proceedings, he is not entitled to a waiver of court costs under section 57.081 if he
is found to be indigent on remand, but only to a deferral of prepayment of court
costs and fees under section 57.085. See John v. Department. of Corrs., 124 So. 3d
381, 383 (Fla. 1st DCA 2013).
                                          2
determine based upon the record that appellant would have declined to comply had

the court only directed him to file a listing of prior actions, which would have

warranted denial of appellant’s motion for waiver, and thus we cannot affirm on

that basis. See, e.g., Johnson v. Burns, 804 So. 2d 345 (Fla. 4th DCA 2001).

      Applying the rule of lenity to this pro se litigant, see Esquivel v.

McDonough, 946 So. 2d 104, 105 n.1 (Fla. 1st DCA 2007), appellant sufficiently

challenged the copy requirement below and on appeal. Because this requirement

was unconstitutionally imposed contrary to Jackson and Mitchell, appellant must

be given the opportunity to submit a list of his prior actions required by section

57.085(7), minus the copies.

      Contrary to the arguments of the parties, the trial court did not definitively

determine that appellant is a vexatious litigant, and any such determination must be

reached in compliance with section 68.093, Florida Statutes (2012).

      REVERSED and REMANDED for further proceedings.

PADOVANO, WETHERELL, and MAKAR, JJ., CONCUR.




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