JERRY HOLMES, PETITIONER,
v.
HON. BARRY E. GOLDSTEIN, AS CIRCUIT JUDGE OF THE 17TH JUDICIAL CIRCUIT, RESPONDENT
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A judge's remarks at a prior sentencing, indicating a belief that the defendant lied, warrant disqualification in a subsequent proceeding where the defendant's credibility is at issue.
[1] A judge's remarks at a prior sentencing, indicating a belief that the defendant lied and attempted to discredit a witness, create a well-founded belief that the judge wil…
[2] A defendant is entitled to a trial judge who has not evaluated their credibility and character in a negative fashion.
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Join FLexlaw to unlock all legal intelligencePetitioner sought to disqualify the respondent judge due to remarks made during a prior sentencing hearing. The judge expressed strong views that the …
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PER CURIAM.
Petitioner unsuccessfully sought to have respondent disqualify himself in the present criminal charge pending against petitioner because of a perceived lack of impartiality arising out of respondént’s remarks when he sentenced petitioner on an earlier charge after a jury had found petitioner guilty.
Respondent’s questioned remarks at sentencing were his strongly expressed views that during the jury trial petitioner tried to “sell” or discredit a deputy’s reputation and that respondent did not think the deputy deserved to be treated like that by petitioner. Respondent also stated that petitioner’s unsuccessful efforts to discredit the deputy caused respondent to be disappointed with petitioner, especially because petitioner almost had him believing petitioner’s statements and his protestations of innocence. The clear implication o°f the trial judge’s comments, is that respondent concluded petitioner had lied, giving rise to a well-founded belief that respondent would not believe petitioner in future proceedings.
Petitioner is entitled to have a trial judge preside over matters involving petitioner’s credibility in the present case who has not evaluated petitioner’s credibility and character in a negative fashion, just as the state should be free from a presiding judge who believes, as a result of a previous case, that the defendant is credible and worthy. In a word, both sides in the present case were entitled to impartiality. See Brown v. St. George Island, Ltd., 561 So. 2d 253 (Fla.1990); DeMetro v. Barad, 576 So. 2d 1353 (Fla. 3d DCA 1991); Deauville Realty Co. v. Tobin, 120 So. 2d 198 (Fla. 3d DCA 1960).
Respondent’s reliance upon Fischer v. Knuck, 497 So. 2d 240 (Fla.1986), is not persuasive, given the factual dissimilarity between the trial court’s remarks on the record in this case, and the defendant’s subjective perceptions of the trial judge’s facial expressions and body language in Fischer. Writ of Prohibition Granted.
GLICKSTEIN and PARIENTE, JJ., concur. FARMER, J., dissents without opinion.
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D.H. v. Dep't of Child. & Families, 12 So. 3d 266 (Fla. 1st DCA 2009)…prejudged the decision regarding an appropriate sentence, and the judge’s instructions to have the State re-evaluate its intent to seek the death penalty created the appearance the court would disregard a death recommendation); Holmes v. Goldstein, 650 So. 2d 87 (Fla. 4th DCA 1995). “[Ejvery litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939); see Seay v. State, 286 So. 2d 532, 544 (Fla.1973); Brown v. State, 885 So. 2d…
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JJN FLB, LLC v. CFLB P'ship, LLC (Fla. 3d DCA 2019)…DCA 2014) (“The motion, which sought disqualification based upon the judge’s statements indicating that she had strongly and definitively prejudged Petitioner’s credibility in an unfavorable fashion, should have been granted.”); Holmes v. Goldstein, 650 So. 2d 87, 88 (Fla. 4th DCA 1995) (“Petitioner is entitled to have a trial judge preside over matters involving petitioner’s credibility in the present case who has not evaluated petitioner’s credibility and character in a negative fashion.”). Under prevailin…
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Bilzin Sumberg Baena Price & Alexrod, LLP v. THE Cantor Grp. LAW P.A. (Fla. 3d DCA 2019)…DCA 2014) (“The motion, which sought disqualification based upon the judge’s statements indicating that she had strongly and definitively prejudged Petitioner’s credibility in an unfavorable fashion, should have been granted.”); Holmes v. Goldstein, 650 So. 2d 87, 88 (Fla. 4th DCA 1995) (“Petitioner is entitled to have a trial judge preside over matters involving petitioner’s credibility in the present case who has not evaluated petitioner’s credibility and character in a negative fashion.”). Under prevailin…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)
- Brown v. ST. George Island, Ltd., 561 So. 2d 253 (Fla. 1990)
- Deauville Realty Co., Inc. v. Tobin, 120 So. 2d 198 (Fla. 3d DCA 1960)
- DeMETRO v. The Honorable Frederick N. Barad, 576 So. 2d 1353 (Fla. 3d DCA 1991)