MICHAEL DOUGLAS MCGIBNEY, PETITIONER,
v.
THE HONORABLE C. MCFERRIN SMITH, RESPONDENT
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UPCHURCH, Chief Judge.
This cause is before this court on a petition for writ of prohibition occasioned by the refusal of the respondent, Judge Smith, to recuse himself after a motion for disqualification was filed. This court ordered a response. Counsel for Judge Smith devoted considerable time and effort to the preparation of a detailed and thoroughly researched brief on the law of disqualification.
Judge Smith argues that the allegations of the motion were insufficient to require disqualification. We disagree and were the motion otherwise in compliance with section 38.10, Florida Statutes (1985), we would issue the writ.
The motion, however, is legally insufficient in that it fails to include an affidavit as required by the statute. An acknowledgment before a notary public is attached to the motion; however, the petitioner merely acknowledges that he executed the motion, he does not swear that the facts alleged are true.
Writ DENIED.
DAUKSCH, J., concurs.
COWART, J., concurs in part and dissents in part with opinion.
COWART, Judge,
concurring in part, dissenting in part.
The petition for writ of prohibition should be denied because the motion for disqualification of judge is unsworn. However, this court should not, by way of dicta, express an opinion as to the merits of the motion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Pina v. Simon-Pina, 544 So. 2d 1161 (Fla. 5th DCA 1989)…re true.2 In an acknowledgment, the person merely declares that he executed and signed the document.3 Where an affidavit is called for, an acknowledgment will not suffice. Hammond v. Eastmoore, 513 So. 2d 770 (Fla. 5th DCA 1987); McGibney v. Smith, 511 So. 2d 1083 (Fla. 5th DCA 1987). Section 48.194 clearly requires that the process server’s affidavit — not merely an acknowledgment — be filed. Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984); Nettles v. White, 439 So. 2d 1048 (Fla. 2d DCA 198…
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Hammond v. Hon. E.L. Eastmoore, 513 So. 2d 770 (Fla. 5th DCA 1987)…he motion is made in good faith. An acknowledgment before a notary public is attached to the motion; however, the petitioner merely acknowledges that she executed the motion, she does not swear that the facts alleged are true. See McGibeny v. Smith, 511 So. 2d 1083 (Fla. 5th DCA 1987). WRIT DENIED. UPCHURCH, C.J., and COBB, J., concur.…
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McGIBENY v. Hon. C. McFerrin Smith, III, 524 So. 2d 713 (Fla. 5th DCA 1988)…UKSCH, Judge. This matter is before the court upon a petition for writ of prohibition. The allegations of the petition are the same as those which this court found sub [*714] stantially sufficient, but procedurally deficient, in McGibeny v. Smith, 511 So. 2d 1083 (Fla. 5th DCA 1987). The allegations of the petition before this court are legally sufficient, as were, those in the Motion for Disqualification of Judge filed below. The order denying the disqualification was error. In his responses to this court…
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