DAVID LUSSKIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An order denying a motion to mitigate sentence is not appealable, but an order denying a motion to disqualify a judge is reviewable by writ of prohibition.
Defendant appealed an order denying his motion to mitigate sentence and a motion to disqualify the trial judge. The motion to disqualify was based on …
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KLEIN, Judge.
David Lusskin appeals an order denying his motion to mitigate sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(e). Such an order is not appeal-able. Moya v. State, 668 So. 2d 279 (Fla. 2d DCA 1996) and cases cited therein.
In his brief, Lusskin does not complain about the merits of the denial of the motion to mitigate, but rather limits his argument to his motion to disqualify the trial judge, which was denied in the same order which denied the motion to mitigate. The ground of the motion to disqualify was that, although the trial judge had presided over the trial and had imposed the sentence, the judge had since been transferred to probate, and should not be able to choose which motions he would rule on in cases which had previously been assigned to him in the criminal division. Although the denial of the motion to mitigate is not appealable, the order denying disqualification is reviewable under this court’s jurisdiction to issue writs of prohibition. Pressey v. State, 710 So. 2d 688 (Fla. 4th DCA 1998).
The trial judge properly denied the motion to disqualify, because the judge who presided over the trial should, if possible, determine the motion to mitigate. See Fla. R.Crim.P. 3.700(c)(l)(if sentence is to be pronounced by judge who did not preside at trial, the judge must become “acquainted with what transpired at the trial.”).
We therefore deny prohibition and dismiss the appeal.
GLICKSTEIN and WARNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Adams v. State, 800 So. 2d 741 (Fla. 5th DCA 2001)…rcise of discretion in ruling on a motion for mitigation pursuant to Florida Rule of Criminal Procedure 3.800(c) is not subject to review on appeal, the appeal is dismissed. See Royal v. State, 736 So. 2d 157 (Fla. 3d DCA 1999) and Lusskin v. State, 717 So. 2d 1076, 1077 (Fla. 4th DCA 1998). APPEAL DISMISSED. HARRIS, PALMER and ORFINGER, R.B., JJ., concur.…
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Cowart v. State, 860 So. 2d 1041 (Fla. 5th DCA 2003)…ctice that departs from the well recognized assumption that sentencing is an individualized procedure”); Lester v. State, 446 So. 2d 1088 (Fla. 2d DCA 1984) (applying rule 3.700(c) in context of revocation of probation proceeding); Lusskin v. State, 717 So. 2d 1076 (Fla. 4th DCA 1998) (apply [*1043] ing rule 3.700(c) in context of motion to mitigate sentence); Clemons v. State, 816 So. 2d 1180 (Fla. 2d DCA 2002) (applying rule 3.700(c) in context of resentencing after appeal). The successor judge, if any, may…
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Royal v. State, 736 So. 2d 157 (Fla. 3d DCA 1999)…PER CURIAM. As the trial court’s exercise of discretion in ruling on a motion for mitigation pursuant to Florida Rule of Criminal Procedure 3.800(c) is not subject to review on appeal, the appeal is dismissed. See Lusskin v. State, 717 So. 2d 1076, 1077 (Fla. 4th DCA 1998); Moya v. State, 668 So. 2d 279, 280 (Fla. 2d DCA 1996); Bourjolly v. State, 623 So. 2d 870 (Fla. 3d DCA 1993). However, points I and II of the motion to mitigate raise claims of ineffective assistance of counsel and a const…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moya v. State, 668 So. 2d 279 (Fla. 2d DCA 1996)
- Turner v. State, 710 So. 2d 688 (Fla. 1st DCA 1998)