JOHN ZAMUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Zamus appealed the revocation of his probation and resulting sentence. The Fourth District Court of Appeal affirmed the trial court's order, finding no abuse of discretion in the credibility determinations and rejecting Zamus's motion to disqualify the trial judge based on alleged bias.
The trial court did not abuse its discretion in revoking probation and imposing sentence based on credibility determinations. The trial judge was not disqualified because Zamus failed to demonstrate he would be affected by any alleged judicial bias, as his sentencing guidelines and prior plea agreement precluded time served as a viable sentencing option.
[1] A trial court's ruling on the credibility of testimony presented is generally not subject to review for abuse of discretion.
[2] Remarks by a trial judge concerning sentencing options for probation violators may warrant disqualification if the defendant is within the class of individuals who could…
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 affirm the trial court's order revoking appellant's probation and his resulting sentence. We conclude that the trial court's ruling was based upon the credibility of the testimony presented. We find no abuse of discretion.”
Establishes the standard of review and the basis for affirming the probation revocation.
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Join FLexlaw to unlock all legal intelligenceZamus had agreed as part of a plea arrangement to be treated as a habitual offender if he violated probation. His sentencing guidelines scoresheet ref…
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WARNER, Judge.
We affirm the trial court’s order revoking appellant’s probation and his resulting sentence. We conclude that the trial court’s ruling was based upon the credibility of the testimony presented. We find no abuse of discretion.
Appellant also moved to disqualify the trial judge on the same grounds as were asserted in the recent case of Hayes v. State, 686 So. 2d 694 (Fla. 4th DCA1996). In that case, we held that remarks by the trial judge that no one in his court would get time served on a violation of probation warranted disqualification of the judge in those proceedings. Id. at 696. However, we explained that the appellant in Hayes was in the class of probation violators who might be affected by the judge’s bias. Id. at 695. The appellant in Hayes had requested a downward departure sentence based on a valid ground for departure and thus time served might have been one sentencing option. Id.
In the instant case, appellant has not demonstrated that he would be affected by the judge’s alleged bias. At the original sentencing of appellant, as part of a plea, he had agreed to be treated as a habitual offender if he violated probation. Appellant’s sentencing guidelines scoresheet reflected that the low end of his recommended sentence without habitualization was three and a half years in state prison. Appellant made no argument for downward departure. Therefore, the record does not support a finding that appellant would be in the class of violators who could have been sentenced to time served on a violation of probation. Thus, the judge’s statements do not reflect a legally sufficient reason for disqualification in this case. We therefore affirm the trial court’s denial of the motion for disqualification.
POLEN, J., concurs.
STONE, J., concurs specially with opinion.
[*1013] STONE, Judge,
concurring specially.
I concur in affirming because, as explained, Hayes is inapplicable here. Nevertheless, I must note that I do not concur in, and would recede from, Hayes v. State.