E.J. AND E.J., PARENTS OF M.C.J., A CHILD, APPELLANTS,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE
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A successor judge cannot weigh testimony heard by a predecessor judge without a stipulation from the parties.
[1] A successor judge who did not hear all the evidence may only enter a verdict or judgment upon a retrial or if the parties stipulate to a decision based on the record of p…
[2] A successor judge may complete acts left uncompleted by a predecessor, but cannot weigh and compare testimony heard before the other judge.
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Join FLexlaw to unlock all legal intelligenceAppellants appeal the termination of parental rights and denial of a mistrial after the presiding judge recused herself before rendering a decision. T…
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PETERSON, J.
Appellants, E.J. and E.J., appeal the termination of their parental rights as to their minor son, M.C.J., and the denial of their motion for mistrial or new trial. After hearing the evidence, but prior to rendering a decision, the judge presiding over the termination proceeding recused herself. The successor judge ordered the testimony transcribed and indicated in the termination order that he had reviewed the transcripts.
While a successor judge may complete acts left uncompleted by a predecessor, he or she may not weigh and compare testimony heard before the other judge. See Tompkins Land and Housing, Inc. v. White, 431 So. 2d 259, 260 (Fla. 2d DCA 1983). Also, in the absence of a statute to the contrary, a successor judge cannot generally make findings or render a final decree even though the testimony is transcribed at trial and preserved. See Bradford v. Found. & Marine Constr. Co., 182 So. 2d 447, 449-50 (Fla. 2d DCA 1966) (citations omitted).
Consequently, a successor judge that does not hear all the evidence may only enter a verdict or judgment upon a retrial or if the parties stipulate to a decision on the basis of the record of the prior proceedings. See Tompkins Land, 431 So. 2d at 260 (citing Bradford, 182 So. 2d at 449-50).1 In the instant case, the parties did not stipulate that the successor judge could render a judgment based upon a reading of the court file and the transcript of the hearing before his predecessor.
Accordingly, the trial court should have granted the appellants’ motion for mistrial or new trial.
REVERSE and REMAND.
COBB and HARRIS, JJ., concur. . See also Umscheid v. Umscheid, 724 So. 2d 1267, 1268 (Fla. 5th DCA 1999); Hatcher v. St. Joe Paper Co., 603 So. 2d 65 (Fla. 1st DCA 1992); L.S. v. State, 593 So. 2d 296 (Fla. 5th DCA 1992); Carr v. Byers, 578 So. 2d 347 (Fla. 1st DCA 1991); Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990); Beattie v. Beattie, 536 So. 2d 1078 (Fla. 4th DCA 1988); Anders v. Anders, 376 So. 2d 439 (Fla. 1st DCA 1979); Silvern v. Silvern, 252 So. 2d 865 (Fla. 3d DCA 1971).
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Citator
Cited By
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Fratello v. State, 950 So. 2d 440 (Fla. 4th DCA 2007)…revoking probation); Hartney v. Piedmont Tech., Inc., 814 So. 2d 1217 (Fla. 1st DCA 2002) (holding that successor judge who did not preside at trial or hear evidence could not enter final judgment). See also E.J. v. Dep’t. of Children and Families, 795 So. 2d 1131 (Fla. 5th DCA 2001); Tompkins Land and Hous., Inc. v. White, 431 So. 2d 259, 260 (Fla. 2d DCA 1983). There was no stipulation here. We reject the argument that Fra-tello waived his right to have the judge hear the witnesses, or that he invited tria…
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Tamiko Kirt v. Sharper, 940 So. 2d 1239 (Fla. 5th DCA 2006)…e would rule when a proposed order was submitted to him. Even so, we held that it was improper for the successor judge to enter an order consistent with the letter since he had not heard the evidence. In E.J. v. Department of Children and Families, 795 So. 2d 1131 (Fla. 5th DCA 2001), this court held that, while a successor judge may complete acts left uncompleted by a predecessor judge, he or she may not weigh and compare testimony heard before the predecessor judge. Similarly, in Fry v. Fry, 887 So. 2d 438…
Authorities Cited
- Bradford v. Found. & Marine Constr. Co., Inc., 182 So. 2d 447 (Fla. 2d DCA 1966)
- Edward v. Dep't of Health & Rehabilitative Servs., 536 So. 2d 1078 (Fla. 4th DCA 1988)
- Silvern v. Silvern, 252 So. 2d 865 (Fla. 3d DCA 1971)
- Tompkins Land & Hous., Inc. v. Terryceia Vann White, 431 So. 2d 259 (Fla. 2d DCA 1983)
- Carr v. Byers, 578 So. 2d 347 (Fla. 1st DCA 1991)
- Anders v. Thaddeus A. Anders, 376 So. 2d 439 (Fla. 1st DCA 1979)
- L.S. v. State, 593 So. 2d 296 (Fla. 5th DCA 1992)
- Alvord v. Christal Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990)
- Umscheid v. Umscheid, 724 So. 2d 1267 (Fla. 5th DCA 1999)
- Hatcher v. ST. JOE Paper Co., 603 So. 2d 65 (Fla. 1st DCA 1992)