          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-3701
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DAVID CHARLES SUSSMAN,

    Appellant,

    v.

DEPARTMENT OF CORRECTIONS,

    Appellee.
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On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.

                         October 18, 2018


PER CURIAM.

     Appellant, David Charles Sussman, appeals the dismissal of
his pleading titled “Petition for Writ of Mandamus; 42 U.S.C. §
1983 Civil Rights Complaint; and F.S. 768.28 Tort Complaint,” in
which he sought the reversal of his disciplinary report and return
of lost gain time as to Claims 1 and 2 and $10,000 in nominal and
compensatory damages as to Claims 3 through 7. The trial court
dismissed the pleading without prejudice because of Appellant’s
failure to comply with its prior Order on Indigence Status, wherein
it declined to adjudicate him indigent under section 57.085, Florida
Statutes, and warned that he had thirty days to pay the filing fees
or the matter would be dismissed without prejudice.
     On appeal, Appellant argues that dismissal was improper
because section 57.085, Florida Statutes (2017), does not apply to
his collateral criminal claims. Appellant’s argument is without
merit because, as he recognizes, his pleading is a mixed claim
petition, and mixed petitions are not exempt from section 57.085.
See Schmidt v. McDonough, 951 So. 2d 797, 802-03 (Fla. 2006)
(concluding that “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”); see also
Thomas v. Dep’t of Corr., 159 So. 3d 291, 292 (Fla. 1st DCA 2015)
(finding that the appellant’s mandamus petition challenging his
inability to earn gain time and loss of eligibility for a work release
program was a mixed petition subject to section 57.085).

     Appellant’s second argument that the dismissal of his civil
claims pursuant to section 57.085 violates treaties the United
States has entered because it imposes on him an obligation to pay
based solely on his status as a prisoner is likewise without merit.
See Smith v. Fla. Dep’t of Corr., 974 So. 2d 1110, 1111-12 (Fla. 1st
DCA 2007) (“The appellants question the constitutionality of
section 57.085, and suggest that it violates their right of access to
the courts. However, the supreme court has recognized that the
legislature may address the prepayment of fees and costs as
provided in section 57.085. See Jackson v. Florida Dep’t of
Corrections, 790 So.2d 381 (Fla. 2000).”).

      Accordingly, we affirm. Appellant is cautioned that abusive,
repetitive, malicious, or frivolous filings will result in sanctions
such as a bar on pro se filing in this court or referral to prison
officials for disciplinary proceedings, which may include forfeiture
of gain time. See State v. Spencer, 751 So. 2d 47 (Fla. 1999); see
also § 944.279(1), Fla. Stat. (2017).

    AFFIRMED.

WOLF, LEWIS, and ROWE, JJ., concur.




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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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David Charles Sussman, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Brett Coleman, Assistant
Attorney General, Tallahassee, for Appellee.




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