Carsten v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D2024-0183 _____________________________

BRIAN KEITH CARSTEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Bay County. Timothy Allen Register, Judge.

February 5, 2025

PER CURIAM.

Brian Keith Carsten is serving a life sentence for sexual battery on a child 12 years of age or older but under 18 by a person in familial or custodial authority, three counts of lewd or lascivious molestation, and solicitation of a child under 18 years of age to engage in an act constituting sexual battery by a person in familial or custodial authority. His convictions and sentences were affirmed on direct appeal, with mandate issuing in 2017. See Carsten v. State, 227 So. 3d 567 (Fla. 1st DCA 2017). He has previously filed a petition alleging ineffective assistance of appellate counsel, a petition seeking a belated appeal of the denial of a previous postconviction motion, and a petition for writ of mandamus, but has not obtained any relief in this court. See Carsten v. State, 274 So. 3d 333 (Fla. 1st DCA 2019); Carsten v.

State, 330 So. 3d 973 (Fla. 1st DCA 2021); Carsten v. State, 380 So. 3d 493 (Fla. 1st DCA 2023). He now claims the circuit court erred in dismissing his present postconviction motion, which argued that his case should be dismissed for lack of subject matter jurisdiction.

We affirm. This court has repeatedly rejected untimely and successive postconviction challenges to a trial court’s subject matter jurisdiction based on a prosecutor’s alleged failure to take the sworn testimony of a material witness before filing the charging document. See, e.g., Reynolds v. State, 221 So. 3d 754, 755 (Fla. 1st DCA 2017) (“The claim raised in the motion—that Appellant’s convictions and sentences are void because the information was not supported by sworn testimony of a material witness—is not only untimely, but it is also successive and frivolous.” (internal citations omitted)); see also Johnson v. State, 321 So. 3d 853, 855 (Fla. 1st DCA 2021) (describing a defendant’s untimely postconviction motion as “completely meritless” where it challenged the trial court’s jurisdiction based on the prosecutor’s alleged failure to take the sworn testimony of a material witness before filing the information).

Because we find this appeal to be frivolous, we direct the clerk to forward a certified copy of this opinion to the Department of Corrections for potential disciplinary action against Carsten. See § 944.279, Fla. Stat.; Ponton v. Willis, 172 So. 3d 574, 576 (Fla. 1st DCA 2015). Additionally, we caution Carsten that the filing of any additional frivolous or repetitious appeals or petitions challenging his convictions and sentences in Bay County Case No. 2014-CF- 3394 may result in an order barring him from further pro se filings in this court. See State v. Spencer, 751 So. 2d 47 (Fla. 1999); Fla. R. App. P. 9.410.

AFFIRMED.

RAY, BILBREY, and LONG, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Brian Keith Carsten, pro se, Appellant.

Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.