
    R. Casper ADAMSON, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D06-1201.
    District Court of Appeal of Florida, First District.
    July 20, 2007.
    R. Casper Adamson, pro se, Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

We AFFIRM the dismissal of the mandamus petition as frivolous, without further comment. We hold that section 944.279, Florida Statutes, which provides that an inmate found to have brought a frivolous or malicious collateral criminal proceeding filed after September 30, 2004, is subject to discipline by the Department of Corrections, is not an ex post facto law because Appellant’s petition was filed after September 30, 2004; does not necessarily result in lost gain time; and does not increase the punishment for the crime of which Appellant was convicted, but only promotes punishment for filing frivolous claims.

We REVERSE, however, the finding that Appellant is a vexatious litigant under section 68.098, Florida Statutes, because there was no competent substantial evidence to support the finding that Appellant had commenced five or more pro se actions in the immediately preceding five years that had been finally and adversely determined against him. The State has wisely conceded this point.

We AFFIRM the imposition of the original lien, because Appellant did not preserve his challenge to it by arguing the point below. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007).

However, we REVERSE the imposition of the appellate lien, and QUASH the March 23, 2006, order authorizing the DOC to place an appellate lien of $126.50 on Appellant’s account. We REMAND with directions that the trial court order the DOC to dissolve that lien and direct reimbursement of any monies already removed from Petitioner’s account towards payment of that hen.

BARFIELD and ROBERTS, JJ., concur.  