JOHN MANGINA, ET AL., PETITIONERS,
v.
LON S. CORNELIUS, JR., RESPONDENT
ORFINGER, Judge.
The sworn motion and supporting affidavits seeking to disqualify respondent as trial judge in this civil action are legally sufficient. Where the motion is legally, sufficient, “the judge shall not pass on the truth of the facts alleged [and] shall enter an order of disqualification.” Rule 1.432, Fla.R.Civ.P.; section 38.10, Florida Statutes (1983). See Bundy v. Rudd, 366 So. 2d 440 (Fla.1978) and State ex rel. Zacke v. Woodson, 399 So. 2d 7 (Fla. 5th DCA 1981) which discuss the virtually identical Florida Rule of Criminal Procedure 3.230(d). Where the trial judge refuses to disqualify himself, prohibition is the proper remedy, Bundy, but on the basis of this opinion we assume the formal issuance of the writ will be unnecessary.
ORDERED ACCORDINGLY.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.
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Pilkington v. Pilkington, 182 So. 3d 776 (Fla. 5th DCA 2015)…t petition. Ordinarily, “[a] writ,of prohibition is the proper procedure for appellate review to test the validity of a motion to ■ disqualify.” Time Warner Entm’t Co, v. Baker, 647 So. 2d 1070, 1071 (Fla. 5th DCA 1994) (citing Mangina v. Cornelius, 462 So. 2d 602, 602 (Fla. 5th DCA 1985); Hayslip v. Douglas, 400 So. 2d 553, 555 (Fla. 4th DCA 1981)). However, since Judge Smith has retired, he will no longer preside over this case; therefore, certiorari rather than prohibition is appropriate. Barber v. MacKenz…
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Time Warner Ent. Co., L.P. v. Hon. Joseph P. Baker, 647 So. 2d 1070 (Fla. 5th DCA 1994)…the writ. We make these observations before discussing the writ pending before us. First, we have jurisdiction. A writ of prohibition is the proper procedure for appellate review to test the validity of a motion to disqualify. Mangina v. Cornelius, 462 So. 2d 602 (Fla. 5th DCA 1985); Hayslip v. Douglas, 400 So. 2d 553, 555 (Fla. 4th DCA 1981). Second, a review of the file indicates that Time Warner has not complied with Florida Rules of Judicial Administration 2.160 for the disqualification of trial judges.…
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- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- State ex rel. Clarence Albert Zacke v. Honorable J. William Woodson, 399 So. 2d 7 (Fla. 5th DCA 1981)