ALLEN MOSS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Fourth District Court of Appeal granted a petition for writ of prohibition and quashed an order denying a motion to disqualify the trial judge because the judge improperly inquired into the truthfulness of allegations in the recusal affidavit rather than accepting them as true.
A trial judge must accept the sworn factual allegations in a recusal motion as true and cannot challenge, rebut, or evaluate their truthfulness.
[1] A trial judge ruling on a motion for recusal may not inquire into, challenge, rebut, or evaluate the truthfulness of sworn factual allegations in the recusal affidavit.
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Join FLexlaw to unlock all legal intelligence“In ruling on the motion for recusal, the judge may not challenge, rebut, or evaluate the truthfulness of the sworn fact allegations.”
The court explaining the proper standard for judicial review of recusal motions.
Moss filed a motion to disqualify the trial judge based on alleged improper comments. The trial judge, in ruling on the motion, inquired whether couns…
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PER CURIAM.
We grant this petition for writ of prohibition on the authority of Torres v. State, 697 So. 2d 175 (Fla. 4th DCA 1997), and Hayes v. State, 686 So. 2d 694 (Fla. 4th DCA 1996), rev. dismissed, 691 So. 2d 1081 (Fla.1997), and quash an order denying a motion to disqualify the trial court judge.
We additionally note that the trial court here went beyond ruling on the facial sufficiency of the allegations and encouraged counsel to conduct an independent investigation by inquiring if counsel had spoken with a witness about certain comments by the judge that are the subject of this and the above opinions. The witness’ statement contradicts the allegations in Petitioner’s initial affidavit as to what the judge said on the earlier occasion that prompted the motions for recusal here and in other violation of probation cases. However, such inquiry by the court into the truth of the claims in Petitioner’s affidavit simply constitutes an additional ground requiring recusal. In ruling on the motion for recusal, the judge may not challenge, rebut, or evaluate the truthfulness of the sworn fact allegations. See Nathanson v. Nathanson, 693 So. 2d 1061, 1062 (Fla. 4th DCA 1997); Bundy v. Rudd, 366 So. 2d 440, 442 (Fla.1978); Clark Auto Leasing & Rentals, Inc. v. Lupo, 547 So. 2d 1016, 1017 (Fla. 4th DCA 1989).
We remand for appointment of a successor trial judge.
STEVENSON and GROSS, JJ., concur. STONE, C. J., concurs specially with opinion.
STONE, Chief Judge,
concurring specially.
I concur in the majority opinion as this result is mandated by the authorities cited. However, if I were writing on a clean slate, I would not concur in Hayes v. State.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- Hayes v. State, 686 So. 2d 694 (Fla. 4th DCA 1996)
- Singletary v. Tatol, 697 So. 2d 175 (Fla. 1st DCA 1997)
- Clark Auto Leasing & Rentals, Inc. v. Lupo, 547 So. 2d 1016 (Fla. 4th DCA 1989)
- Roldolfo Torres v. State, 697 So. 2d 175 (Fla. 4th DCA 1997)
- Nathanson v. Nathanson, 693 So. 2d 1061 (Fla. 4th DCA 1997)