CHARLES STEVEN NORRIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A successor judge, appointed after the original judge's disqualification, is authorized to rule on motions to disqualify themselves and is not required to recuse.
The defendant, convicted of attempted second-degree murder, moved to disqualify the initial judge. A successor judge was appointed. During probation r…
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PER CURIAM.
Charles Norris appeals from a revocation of probation and sentence entered thereon. We affirm.
Defendant was convicted of attempted second degree murder and placed on probation. During pre-trial proceedings, defendant successfully moved to disqualify the first judge; a successor judge was appointed. Defendant was later charged with violating his probation. During the revocation proceedings, defendant filed four separate motions for disqualification of this same successor judge. On each motion the judge ruled that because she was the “successor” judge, she could pass on the merits of the allegations. Each of the four motions was denied and defendant was found guilty of violating probation; he now appeals.
This probation revocation proceeding arose from the attempted murder trial and subsequent conviction, and was therefore part of the same criminal case. Because the first judge was disqualified by the defendant’s motion, the second judge properly ruled that she was a successor judge. As such, she was specifically authorized to “pass on the truth of the facts alleged in support of the motion.” Fla.R.Jud.Admin. 2.160(g).1 See § 38.10, Fla.Stat. (1995). She was also “permitted to explain the status of the record.” Barwick v. State, 660 So. 2d 685, 694 (Fla.1995), cert. denied, — U.S. -, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996). This successor judge, authorized to take these actions, was not required to disqualify herself.
Affirmed.
. (g) Determination — Successive Motions. If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may pass on the truth of the facts alleged in support of the motion.
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J & J Indus., Inc. v. Carpet Showcase OF Tampa BAY, Inc., 723 So. 2d 281 (Fla. 2d DCA 1998)…t a successor judge for purposes of rule 2.160, was forbidden to pass on the truthfulness of the facts alleged. See Pinfield v. State, 710 So. 2d 201, 202 (Fla. 5th DCA 1998); Fogan v. Fogan, 706 So. 2d 382 n. 1 (Fla. 4th DCA 1998); Norris v. State, 695 So. 2d 922 (Fla. 3d DCA 1997). The excerpt in the trial judge’s order which violates the requirements of rule 2.160(f) reads: “The facts alleged in the motion are not factual. I hold no prejudice against the Defendant or his attorney. The transcript of the May…
Authorities Cited
- Barwick v. State, 660 So. 2d 685 (Fla. 1995)