A.T.S. MELBOURNE, INC., A FLORIDA CORPORATION, PETITIONER,
v.
EDWARD M. JACKSON, AS CIRCUIT JUDGE OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA, RESPONDENT
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The court granted a writ of prohibition requiring a trial judge's disqualification because the judge exceeded proper scope by attempting to refute charges of partiality rather than simply ruling on legal sufficiency of the disqualification motion.
A judge must be disqualified when he attempts to refute charges of partiality by denying facts of alleged ex parte communication, as such refutation exceeds the proper scope of inquiry into a disqualification motion.
[1] A trial judge must be disqualified when he attempts to refute charges of partiality by denying facts underlying a disqualification motion, as such refutation exceeds the…
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Join FLexlaw to unlock all legal intelligence“When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry, and on that basis alone established grounds for his disqualification.”
Court citing Bundy v. Rudd to establish the standard for judicial disqualification based on judicial conduct during the disqualification hearing itself.
A.T.S. Melbourne, Inc. sought a writ of prohibition to require disqualification of a trial judge in the Eighteenth Judicial Circuit. At a hearing on t…
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PER CURIAM.
A.T.S. Melbourne, Inc. sought a writ of prohibition from this court to require the disqualification of a trial judge from further participation in a lawsuit pending in the Eighteenth Judicial Circuit.1 We find that the motion for disqualification, attached affidavits, and the excerpt from sworn testimony taken before the lower court at a hearing on the motion on May 17, 1985, were legally sufficient to require recusal of the trial judge in this case.
At the hearing, the trial judge denied the facts of an alleged ex parte communication, and his own ability to be impartial, although that matter was also disputed by petitioner. “When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry, and on that basis alone established grounds for his disqualification.” Bundy v. Rudd, 366 So. 2d 440, 442 (Fla.1978); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985); Mangina v. Cornelius, 462 So. 2d 602 (Fla. 5th DCA 1985); State ex rel. Zacke v. Woodson, 399 So. 2d 7 (Fla. 5th DCA 1981); see R.P. Hewitt Associates v. Hunt, 411 So. 2d 266 (Fla. 1st DCA 1982); State v. Testa, 414 So. 2d 38 (Fla. 3rd DCA 1982).
Accordingly, we grant the writ of prohibition and remand this cause for further proceedings.
ISSUE WRIT; REMAND.
DAUKSCH, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur. . Case No. 85-1989-CA-D.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Haggerty v. State, 531 So. 2d 364 (Fla. 1st DCA 1988)…y atmosphere” between himself and appellant. Bundy v. Rudd, 366 So. 2d 440 (Fla.1978). See also Diqeronimo v. Reasbeck, 528 So. 2d 556 (Fla. 4th DCA 1988); Ryon v. Reasbeck, 525 So. 2d 1024 (Fla. 4th DCA 1988); and A.T.S. Melbourne, Inc. v. Jackson, 473 So. 2d 280 (Fla. 5th DCA 1985). Therefore, we must reverse the denial of the motion for recusal and remand for resentencing by a different judge. We decline to address appellant’s challenge in Point II to the trial judge’s departure from the guidelines, as tha…
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Lake v. The Honorable Claude R. Edwards, 501 So. 2d 759 (Fla. 5th DCA 1987)…egations of the motion. This he cannot do; therefore, he exceeded the proper scope of his inquiry and on that basis established sufficient grounds for his disqualification. Bundy v. Rudd, 366 So. 2d 440 (Fla.1978); A.T.S. Melbourne, Inc. v. Jackson, 473 So. 2d 280 (Fla. 5th DCA 1985). Respondent contends that the disqualification came too late because the only thing remaining was a motion for new trial. A motion for new trial, however, is something “further” and the rule clearly provides that the judge “shal…
Authorities Cited
- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- C.J. v. State, 471 So. 2d 80 (Fla. 3d DCA 1985)
- Gieseke v. The Honorable Estella May Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985)
- R. P. Hewitt & Assocs. v. The Honorable Charles C. Hurt, 411 So. 2d 266 (Fla. 1st DCA 1982)
- Mangina v. Lon S. Cornelius, Jr., 462 So. 2d 602 (Fla. 5th DCA 1985)
- State of Fla. ex rel. Margaret H. Allen on her own behalf & for the use & benefit of Shorty's BarB-Q, Inc. v. The Honorable Thomas A. Testa, 414 So. 2d 38 (Fla. 3d DCA 1982)
- State ex rel. Clarence Albert Zacke v. Honorable J. William Woodson, 399 So. 2d 7 (Fla. 5th DCA 1981)