CHRISTIAN VALLTOS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a trial judge's attempt to refute allegations of partiality in a disqualification motion, either in the trial court or in a prohibition proceeding, exceeds the proper scope of inquiry and establishes grounds for disqualification.
[1] A trial judge's attempt to refute allegations of prejudgment in an order denying a motion to disqualify establishes grounds for disqualification.
[2] A response filed by a trial judge in a prohibition proceeding that refutes factual allegations or conclusions made by the petitioner creates an intolerable adversary atmo…
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Join FLexlaw to unlock all legal intelligencePetitioner sought to disqualify the trial judge based on statements allegedly showing prejudgment regarding youthful offender treatment. The judge, th…
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PER CURIAM.
Christian Valltos seeks a writ -of prohibition from the denial of his motion to disqualify the trial court based upon statements made by the trial judge which are alleged as evidence of the court’s prejudgment of his case. Responses filed by the attorney general’s office on behalf of the trial judge imper-missibly attempt to refute claims advanced by the petitioner in the trial court in his motion and in his present petition. The petition for writ of prohibition is granted..
Upon receipt of'the prohibition petition, we ordered' a response from the attorney general’s office which was timely filed on behalf of the trial judge.1 At our request, a supplementary transcript was provided by the attorney general, again submitted on behalf of the judge whose comments are the subject óf this proceeding. In an abundance of caution, we asked the attorney general to verify whether-the responses had been filed’on behalf of the trial judge or the State. Nothing submitted to us in response to our inquiry dissuades us from the view that the responses lodged with this court were filed by the attorney general on behalf of the trial judge.
In his motion to disqualify the trial judge, Valltos claimed that the trial court had im-permissibly refused to consider youthful offender treatment as required by section 958.07, Florida Statutes (1995). That statute seems to entitle a criminal defendant to a presentence investigation into the propriety of youthful offender sanctions. Valltos acknowledged that the trial judge eventually acceded to his request to order the presen-tence report. But he alleged that the judge did so begrudgingly, announcing that it would be a “waste of the Court’s time.” Based on these factual allegations, Valltos claimed in his motion, and repeats here in his petition, that the trial court refused to consider his eligibility for any sanction short of a guideline sentence.
The response filed by the attorney general on behalf of the trial judge states that the “trial court merely indicated she did not think it would be appropriate to sentence petitioner as a youthful offender, but she nonetheless would consider sentencing petitioner as such.” It concludes that there “has been no showing that petitioner would not receive a fair hearing and sentence before this judge.” 2
When reviewing a motion for disqualification, the trial judge may look only at the facial sufficiency of the motion, and attempts to refute the charges of partiality in an order denying the motion exceed the proper scope of inquiry and on that basis alone establish grounds for disqualification. See Bundy v. Rudd, 366 So. 2d 440, 442 (Fla.1978). See also Frost v. Ward, 622 So. 2d 597 (Fla. 4th DCA 1993); Townsend v. State, 564 So. 2d 594 (Fla. 2d DCA 1990); Hill v. Feder, 564 So. 2d 609 (Fla. 3d DCA 1990); Clark Auto Leasing and Rentals, Inc. v. Lupo, 547 So. 2d 1016 (Fla. 4th DCA 1989). This principle applies with equal force to a response filed in a prohibition proceeding in the appellate court by the trial judge whose partiality is questioned, and the response refutes factual allegations or conclusions. See Ellis v. Henning, 678 So. 2d 825 (Fla. 4th DCA 1996); Fabber v. Wessel, 604 So. 2d 533 (Fla. 4th DCA 1992); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985); see also State ex rel. Allen v. Testa, 414 So. 2d 38 (Fla. 3d DCA 1982) (disapproving an affidavit filed by the trial judge refuting facts as an attachment to his return to the appellate court’s rule nisi in prohibition).
The response filed on behalf of the., trial judge in this proceeding creates “an intolerable adversary atmosphere between the trial, judge and the litigant.” Bundy, 366 So. 2d at 442; Fabber, 604 So. 2d at 534. Accordingly, we grant the petition, and withhold issuance of the writ with the expectation that the trial court will make appropriate arrangements for an alternative judge to hear the balance of Valltos’s criminal case.
CAMPBELL, A.C.J., and FRANK and NORTHCUTT, JJ., concur. . The petition for writ of prohibition was initially captioned Valltos v. Hon. Lauren Laughlin. We adjusted the caption when we ordered the response and we designate the State of Florida as the respondent. .
. The fact that the response was prepared and signed by a member of the attorney general’s staff does not make it any less a response by the judge herself, for it has been submitted expressly in her name. See Fabber v. Wessel, 604 So. 2d 533, n. 1 (Fla. 4th DCA 1992).
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J & J Indus., Inc. v. Carpet Showcase OF Tampa BAY, Inc., 723 So. 2d 281 (Fla. 2d DCA 1998)…ring would show that the matters contained in the motion and in both affidavits is not what took place.” Attempts to refute the charges of partiality exceed the scope of inquiry and alone establish grounds for disqualification. See Valltos v. State, 707 So. 2d 343, 344 (Fla. 2d DCA 1997); Shumpert, 703 So. 2d at 1129. The trial court compounded this error by filing with this court a written defense of its action, apparently in reply to this court’s order which solicited Carpet Showcase of Tampa Bay, Inc. to…1 / 2
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Edwards-Freeman v. State, 138 So. 3d 507 (Fla. 4th DCA 2014)…ed. R.M.C. v. D.C., 77 So. 3d 234, 237 (Fla. 1st DCA 2012) (citing Ginsberg, 86 So. 2d at 651-52). We agree with petitioners that the state should not rely on ex parte communication with the judge to try to refute the motions. See Valltos v. State, 707 So. 2d 343 (Fla. 2d DCA 1997). As the Second District warned in J & J Industries, Inc. v. Carpet Showcase of Tampa Bay, Inc., 723 So. 2d 281 (Fla. 2d DCA 1998): Trial judges should exercise extreme caution attempting to defend their actions in prohibition act…
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Authorities Cited (11 total)
- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- Ellis v. The Honorable Patti Englander Henning, 678 So. 2d 825 (Fla. 4th DCA 1996)
- C.J. v. State, 471 So. 2d 80 (Fla. 3d DCA 1985)
- Gieseke v. The Honorable Estella May Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985)
- Fabber v. Judge John D. Wessel, 604 So. 2d 533 (Fla. 4th DCA 1992)
- Hill v. The Honorable Richard Y. Feder, 564 So. 2d 609 (Fla. 3d DCA 1990)
- Clark Auto Leasing & Rentals, Inc. v. Lupo, 547 So. 2d 1016 (Fla. 4th DCA 1989)
- Townsend v. State, 564 So. 2d 594 (Fla. 2d DCA 1990)
- State of Fla. ex rel. Margaret H. Allen on her own behalf & for the use & benefit of Shorty's BarB-Q, Inc. v. The Honorable Thomas A. Testa, 414 So. 2d 38 (Fla. 3d DCA 1982)
- Justo Maqueira v. The Montessori Child's. Sch. OF KEY W., Inc., 622 So. 2d 597 (Fla. 3d DCA 1993)