DEVIN TOCCO
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 judge to disqualify himself from a criminal case. The court found that the judge's actions in participating in a related appellate prohibition proceeding created a well-founded fear that the defendant would not receive a fair trial.
Yes, the trial judge's unauthorized extra-record involvement in the prohibition proceeding created a well-founded fear of not receiving a fair and impartial trial, thus requiring disqualification.
[1] A judge's extra-record involvement in a prohibition proceeding after denying a motion to disqualify can create a well-founded fear of not receiving a fair and impartial t…
[2] A judge may comment factually on what transpired during relevant proceedings when ruling upon a motion to disqualify, but this authority does not extend beyond the rendit…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We find that Petitioner has established a well-founded fear that he will not receive a fair trial and grant the petition.”
Establishes the court's ultimate finding and decision.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe defendant, Devin Tocco, sought to disqualify the trial judge after the judge rejected multiple plea agreements. After the judge denied the initial…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Disqualification Of Judge cases and more on FLexlaw
WALLIS, J.
Devin Tocco (Petitioner) seeks a writ of prohibition to disqualify the Honorable Daniel B. Merritt, Jr. from presiding over his criminal case following events at a pretrial hearing on May 11, 2023. We find that Petitioner has established a well-founded fear that he will not receive a fair trial and grant the petition.
Petitioner was charged with Driving While Under The Influence—Third Offense Within Ten Years and Reckless Driving. At three points during the litigation of this case, the parties approached the court with potential plea agreements. Each time, the judge rejected the proposed plea agreements. Petitioner subsequently moved to disqualify him from presiding over the case. The judge denied the motion as legally insufficient. As a result of those events, Petitioner filed with this Court a petition seeking a writ of prohibition in case number 5D23-1454.1 While that case was pending before our Court, the May 11, 2023, pretrial hearing was held before the trial judge. During that hearing, the judge took it upon himself to address Petitioner’s prohibition petition. Specifically, he commented that some relevant portions of the record had not been transmitted to this court. After some back and forth with each counsel in the case, the judge directed the assistant state attorney to supplement the record with this court with specific transcripts from prior hearings the judge deemed relevant to the prohibition proceeding. After the May 11, 2023, hearing, Petitioner filed a second motion to disqualify the judge, arguing inter alia that he improperly injected himself into the pending prohibition proceeding by directing the State to file transcripts. The judge denied the second motion. Appellant thereafter filed the instant petition seeking a writ of prohibition directing the judge to disqualify himself from presiding over Petitioner’s criminal trial and sentencing.
We find Petitioner has established facts that would place a reasonably prudent person in fear of not receiving a fair and impartial trial. See Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983). Specifically, instead of responding to the petition in this court as authorized by Rule 9.100, the judge attempted to participate in the prohibition proceedings by directing the assistant state attorney to supplement the record in this court.
We conclude that this type of extra-record involvement by the judge in the prohibition proceeding after rendition of the order denying the motion for disqualification is both unauthorized and would put a “reasonably prudent person in fear of not receiving a fair and impartial trial.” See Livingston, 441 So. 2d at 1087. In fairness, it appears the trial judge was attempting to “clarify the status of the record.” See Pilkington v. Pilkington, 182 So. 3d 776, 780 (Fla. 5th DCA 2015) (“The judge may comment factually on what transpired during relevant proceedings when ruling upon a motion to disqualify.”); Niebla v. State, 832 So. 2d 887, 888 (Fla. 3d DCA 2002) (holding trial court was “merely stating the status of the record” when denying motion to disqualify).
But while this Court has recognized a trial judge’s authority to clarify the status of the record, we decline to extend that authority beyond rendition of the order denying the motion to disqualify.
Accordingly, we grant the petition for writ of prohibition. PETITION GRANTED; WRIT OF PROHIBITION ISSUED.
EISNAUGLE and MAKAR, JJ., concur. _____________________________