DOROTHY J. HAMMOND, PETITIONER,
v.
HON. E.L. EASTMOORE, AS CIRCUIT JUDGE OF THE SEVENTH JUDICIAL CIRCUIT, FLORIDA, RESPONDENT
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SHARP, Judge.
This cause is before this court on a petition for writ of prohibition occasioned by the refusal of the respondent, the Honorable E.L. Eastmore, to recuse himself after a motion for disqualification was filed.
Were the motion in compliance with Section 38.10, Florida Statutes (1985) and Florida Rule of Criminal Procedure 3.230, we would order the respondent to show cause why the writ should not be issued. However, the motion is legally insufficient in that it fails to include affidavits as required by the statute and the rule and there is no certificate of counsel that the 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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Pina v. Simon-Pina, 544 So. 2d 1161 (Fla. 5th DCA 1989)…oath assert that the facts set forth in the document are 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 1…
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Rainey v. Rainey, 702 So. 2d 306 (Fla. 5th DCA 1997)…e refusing to disqualify him from presiding over Rainey’s divorce proceeding. We treat the notice of appeal as a petition for writ of prohibition, Puckett v. State, 591 So. 2d 326 (Fla. 5th DCA 1992), and deny the petition. See Hammond v. Eastmoore, 513 So. 2d 770 (Fla. 5th DCA 1987) (motion legally insufficient where no affidavit was included and party did not swear that the facts alleged were true; acknowledgment before notary public insufficient). PETITION FOR WRIT OF PROHIBITION DENIED. GOSHORN, THOMP…
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DHSMV v. Satter (9th Cir. Ct. App. Div. 2010)
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- McGIBNEY v. The Honorable C. McFerrin Smith, 511 So. 2d 1083 (Fla. 5th DCA 1987)