FERNANDO FERNANDEZ,
v.
THE STATE OF FLORIDA,
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Fernandez seeks a writ of prohibition to prevent a trial judge from presiding over an evidentiary hearing on his post-conviction motion where the judge's relationship with Fernandez's former counsel had deteriorated significantly, including a contentious courtroom exchange. The court grants the petition, finding that Fernandez has established a reasonable fear of not receiving a fair hearing.
The court grants the petition for writ of prohibition, finding that Fernandez has established a reasonable fear that he will not receive a fair hearing because the trial judge, as the finder of fact, will make credibility determinations regarding the former counsel's testimony when there is evident tension between them.
[1] Allegations in a motion to disqualify a trial judge must be accepted as true when reviewing the motion.
[2] A reasonably prudent person's fear of not receiving a fair and impartial trial is the standard for disqualification of a judge.
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Join FLexlaw to unlock all legal intelligence“When reviewing the motion for disqualification, we consider whether the allegations "would place a reasonably prudent person in fear of not receiving a fair and impartial trial."”
Establishes the standard for reviewing disqualification motions
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Join FLexlaw to unlock all legal intelligenceFernandez's former counsel had a contentious relationship with the trial judge that deteriorated to the point where the judge disqualified himself fro…
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PER CURIAM.
Fernando Fernandez (“Fernandez”) seeks a writ of prohibition to preclude the trial judge below from presiding at an evidentiary hearing on his post-conviction motion in which Fernandez’s former counsel will testify. Fernandez alleges that the trial judge and his former counsel’s relationship deteriorated to such an extent that the trial judge entered an order disqualifying himself from all of that lawyer’s cases. In support of his allegation, Fernandez offers a transcript of a hearing reflecting a contentious exchange between the lawyer and the trial judge culminating in the judge’s instruction to his bailiff to escort the lawyer out of his courtroom.
The facts alleged in the underlying motion to disqualify the trial judge must be accepted as true. Wall v. State, 238 So. 3d 127, 143 (Fla. 2018).
When reviewing the motion for disqualification, we consider whether the allegations “would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990); Barber v. MacKenzie, 562 So. 2d 755, 757 (Fla. 3d DCA 1990).
Canon 3E(1)(a) of the Code of Judicial Conduct requires disqualification when a judge “has a personal bias or prejudice concerning a party or a party’s lawyer.” Because the trial judge, as the finder of fact, will make credibility determinations as to Fernandez’s former counsel’s testimony at the hearing, we find that Fernandez has established a reasonable fear that he will not receive a fair hearing. We do not, by any means, imply that the trial judge will actually be unfair or that he has an actual prejudice, we simply hold that under these circumstances petitioner has met his burden. Petition granted.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Honorable Mary Ann MacKENZIE v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)
- Barber v. Honorable Mary Ann MacKENZIE, 562 So. 2d 755 (Fla. 3d DCA 1990)
- Wall v. State, 238 So. 3d 127 (Fla. 2018)