KEVIN K. CHOUTE
v.
STATE OF FLORIDA
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court granted a writ of prohibition, ordering a trial judge to be disqualified from a criminal case. The judge had previously prosecuted the defendant for similar charges, creating a well-founded fear of unfair treatment.
Yes, the motion was timely filed under the relevant rule. Yes, the prior prosecution by the judge on similar charges established a well-founded fear of not receiving a fair trial, requiring disqualification.
[1] A motion to disqualify a trial judge based on prior prosecution of the defendant in a similar case is timely if filed within the 20-day period prescribed by Rule 2.330(g)…
[2] A criminal defendant establishes facial sufficiency for disqualification when the trial judge previously prosecuted the defendant in a similar case, as such circumstances…
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Join FLexlaw to unlock all legal intelligence“The basis for disqualification is that the trial judge was the prosecutor in a 2007 criminal case against Choute.”
States the core factual basis for the disqualification motion.
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Join FLexlaw to unlock all legal intelligenceKevin K. Choute sought to disqualify the trial judge because the judge had prosecuted him in a prior, similar criminal case. The trial court denied th…
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PER CURIAM.
Kevin K. Choute petitions for a writ of prohibition directed to an order denying his verified motion to disqualify the trial judge from presiding over the underlying criminal case against him. The basis for disqualification is that the trial judge was the prosecutor in a 2007 criminal case against Choute. The State’s response concedes that Choute’s petition was timely and concludes that disqualification is required under the circumstances; counsel for the trial judge disagrees as to both issues.
The order at issue denied Choute’s petition solely on the basis that it was untimely. No hearing was conducted on the motion. The petition, however, was filed within the timeframe set forth in Rule 2.330(g), Florida Rules of General Practice and Judicial
Administration (2022), which requires that a motion to disqualify be filed “within a reasonable time not to exceed 20 days after discovery by the party or party’s counsel, whichever is earlier, of the facts constituting the grounds for the motion.” The motion was thereby facially sufficient as to timeliness.
It was also facially sufficient as to the merits, establishing that—although a direct conflict of interest may not exist—a criminal defendant in Choute’s position may have a well-founded fear of not receiving fair treatment given the circumstances. W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997) (“While the fact that the presiding judge prosecuted petitioner in a previous case does not present a direct conflict of interest, it does support petitioner’s claim of a well founded fear that he will not receive a fair trial before this judge.”); see also Goines v. State, 708 So. 2d 656 (Fla. 4th DCA 1998) (judge who prosecuted defendant six years earlier should not have presided over defendant’s new criminal case of a similar nature). Choute’s underlying proceeding at issue involves the same or similar charges of cocaine trafficking for which the trial judge prosecuted him years ago. In the absence of a hearing, the motion and attached affidavits to Choute’s petition establish the requisite facial sufficiency.
The petition for writ of prohibition is granted with directions that the case be reassigned.
MAKAR, JAY, and M.K. THOMAS, JJ., concur. _____________________________