ERIC VINCENT BUCKNER
v.
THE STATE
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The Ninth Judicial Circuit Court, Appellate Division, dismissed a petition for writ of mandamus seeking disqualification of a trial judge in a criminal case, holding that the proper remedy is a petition for writ of prohibition filed in the Fifth District Court of Appeal, not mandamus in the trial court's appellate division.
A petition for writ of mandamus is not the proper procedural vehicle for reviewing denial of a motion to disqualify; the proper remedy is a petition for writ of prohibition filed in the next higher reviewing court, which in this case is the Fifth District Court of Appeal.
[1] The proper procedural vehicle for seeking review of the denial of a motion to disqualify a judge is a petition for writ of prohibition.
[2] Petitions seeking review of disqualification orders entered in a circuit court case must be filed in the next higher reviewing court.
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Join FLexlaw to unlock all legal intelligence“The traditional remedy for interlocutory review of an order denying judicial disqualification is prohibition.”
Establishes that prohibition, not mandamus, is the proper procedural vehicle for reviewing disqualification orders.
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Join FLexlaw to unlock all legal intelligencePetitioner Bettendorf was charged with burglary of a structure and other offenses in Case No. 2019-CF-788-A-O and was representing himself. He filed a…
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THIS MATTER came before the Court for consideration of the Petition for Writ of Mandamus, filed on December 6, 2019. The Court finds as follows:
The instant Petition seeks the disqualification of the Honorable Keith F. White, the presiding judge in Case No. 2019-CF-788-A-O, in which Petitioner has been charged with burglary of a structure and other offenses, and in which Petitioner is representing himself. According to the Petition, Petitioner has filed “at least” four motions to disqualify Judge White, but those motions were all “improperly denied.”
Under Florida law, the proper procedural vehicle for seeking review of the denial of a motion to disqualify is a petition for writ of prohibition. See Wal-Mart Stores, Inc. v. Carter, 768 So. 2d 21, 21-22 (Fla. 1st DCA 2000) (“The traditional remedy for interlocutory review of an order denying judicial disqualification is prohibition.”). Additionally, since the Petition is seeking review of disqualification orders entered in a Circuit Court case, the Petition should be filed in the next higher reviewing court, not this Court. See State ex rel. Bettendorf v. Martin County Environmental Control Hearing Bd., 564 So. 2d 1227, 1228 (Fla. 4th DCA 1990) (en banc) (“Special writ jurisdiction follows the appellate process.”). The proper reviewing Court in the instant case is the Fifth District Court of Appeal.
Accordingly, it is ORDERED and ADJUDGED that the Petition for Writ of Mandamus is DISMISSED WITHOUT PREJUDICE to Petitioner filing a petition for writ of prohibition in the Fifth District Court of Appeal, and that the above-styled case shall be CLOSED by the Clerk.
DONE and ORDERED in Chambers, in Orlando, Orange County, Florida, the ______ day of ____________, 2019.
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Authorities Cited
- Wal-Mart Stores, Inc. v. Carter, 768 So. 2d 21 (Fla. 1st DCA 2000)
- State v. Martin Cnty. Env't Control Hearing Bd., 564 So. 2d 1227 (Fla. 4th DCA 1990)