LARRY KEITH JACKSON, PETITIONER,
v.
HONORABLE LAWRENCE L. KORDA, CIRCUIT COURT JUDGE, SEVENTEENTH JUDICIAL CIRCUIT, RESPONDENT
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Jackson petitioned for a writ of mandamus (treated as prohibition) to compel a trial judge to disqualify himself from two criminal cases. The court held that Jackson's disqualification motion was legally sufficient under Rule 3.230 of the Florida Rules of Criminal Procedure, contrary to the judge's reliance on the outdated statutory standard in Section 38.10, and remanded for the judge to grant the motion.
Jackson's motion for disqualification was legally sufficient. The procedures for disqualification of judges in criminal cases are governed by Rule 3.230 of the Florida Rules of Criminal Procedure, not the outdated Section 38.10, Florida Statutes. Rule 3.230(b) requires only that a disqualification motion be in writing and accompanied by two or more affidavits setting forth facts for disqualification and a certificate of counsel that the motion is made in good faith—requirements that Jackson's motion satisfied.
[1] A petition for a writ of mandamus to compel a judge's disqualification is properly treated as a petition for a writ of prohibition.
[2] A motion for judicial disqualification based on prejudice requires specific factual allegations and a certification of good faith.
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Join FLexlaw to unlock all legal intelligence“The appropriate remedy is by way of Prohibition.”
Established the correct procedural vehicle for challenging a judge's refusal to disqualify himself.
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Join FLexlaw to unlock all legal intelligenceLarry Keith Jackson filed a motion to disqualify Judge Lawrence L. Korda in two criminal cases where Jackson was the defendant, grounding the motion o…
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HERSEY, Judge.
Larry Keith Jackson filed, in the trial court, a motion for disqualification of Respondent as the presiding judge in two criminal cases in which Jackson was defendant. The motion was denied and Jackson petitioned this Court for a Writ of Mandamus requiring respondent to disqualify himself. The appropriate remedy is by way of Prohibition. Bundy v. Rudd, 366 So. 2d 440 (Fla.1978). Accordingly, we treated the petition as one for a Writ of Prohibition and issued an order to show cause why Prohibition should not be granted. In response, respondent stated that Jackson’s motion for disqualification was denied because it was legally insufficient, citing Section 38.10, Florida Statutes (1979). Respondent further stated that, were a legally sufficient motion presented, it would be granted.
Jackson’s motion for disqualification, grounded on prejudice, contained specific factual allegations and a certification that the motion was made in good faith. Filed along with the motion were two affidavits supporting the factual basis for the motion. The affiants were Jackson and his attorney.
Section 38.10 requires the affidavits “of at least two reputable citizens of the county, not of kin to defendant or counsel for the defendant....” Thus, if this statutory provision were controlling, Jackson’s motion would indeed be legally insufficient. However, the procedures for disqualification of a judge in a criminal case are now governed by Rule 3.230, Florida Rules of Criminal Procedure. See State ex rel. Aguiar v. Chappell, 344 So. 2d 925 (Fla. 3d DCA 1977); Author’s Comment to Fla.R.Crim.P. 3.230.
Pursuant to Rule 3.230(b) “[ejvery motion to disqualify shall be in writing and shall be accompanied by two or more affidavits setting forth facts relied upon to show grounds for disqualification, and a certificate of counsel of record that the motion is made in good faith.” Jackson’s motion meets these requirements, and therefore is a legally sufficient motion.
Accordingly, we grant the petition but find it unnecessary to issue the writ. Rather, we relinquish jurisdiction for respondent to grant Jackson’s motion for disqualification in accordance with the representations of the Response.
BERANEK and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Livingston v. State, 441 So. 2d 1083 (Fla. 1983)…nd inquire only into the sufficiency of the motion and supporting affidavits to state a well-grounded fear of partiality. See, e.g., Bundy v. Rudd; Dickenson v. Parks; State ex rel. Allen v. Testa, 414 So. 2d 38 (Fla. 3d DCA 1982); Jackson v. Korda, 402 So. 2d 1362 (Fla. 4th DCA 1981); State ex rel. Zacke v. Woodson, 399 So. 2d 7 (Fla. 5th DCA 1981); State ex rel. Aguiar v. Chappell, 344 So. 2d 925 (Fla. 3d DCA 1977). On the other hand, when defendants wait until after their trials to seek review of the orders…1 / 2
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Sikes v. Seaboard Coast Line R.R. Co., 429 So. 2d 1216 (Fla. 1st DCA 1983)…ection 38.10, Florida Statutes., Accord Gieseke v. Grossman, 418 So. 2d 1055 (Fla. 4th DCA 1982); R.P. Hewitt & Associates v. Hunt, 411 So. 2d 266 (Fla. 1st DCA 1982); Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981); compare Jackson v. Korda, 402 So. 2d 1362 (Fla. 4th DCA 1981) (criminal case). In considering both the language in the rule and the statute, we think that it is inappropriate to deny a recusal motion simply because the technical requirements of section 38.10 were not satisfied. In referrin…
Authorities Cited
- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- State of Fla. ex rel. Felix Aguiar, Jr. v. The Honorable Bill G. Chappell, 344 So. 2d 925 (Fla. 3d DCA 1977)