ANGEL DIAZ, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A county court judge temporarily assigned to circuit court presided over the petitioner's conviction and subsequent post-conviction motion, but no current assignment order was in effect. The court granted the writ of prohibition, holding that under Wasley v. State, a temporary assignment extends through post-verdict motions but not to post-conviction motions filed after appellate conclusion.
The court granted the petition for writ of prohibition. A county judge cannot rule on a post-conviction motion filed after appellate conclusion without a valid assignment order, as Wasley v. State limits temporary assignments to post-verdict motions only. The court has jurisdiction to address whether an expired assignment order permits a judge to hear post-conviction relief.
[1] A county judge temporarily assigned to circuit court may not rule on a post-conviction motion filed after the conclusion of an appeal if the assignment order has expired.
[2] A motion to disqualify a judge based on the lack of a valid assignment order is distinct from a challenge to the validity of an assignment order itself.
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Join FLexlaw to unlock all legal intelligence“a temporary assignment of a circuit judge from a different circuit to try a case would extend through post-verdict motions; however, we also held that the assignment to try the case did not extend to a post-conviction motion filed after the conclusion of an appeal.”
Establishes the controlling precedent from Wasley v. State limiting the scope of temporary judicial assignments
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Join FLexlaw to unlock all legal intelligencePetitioner was convicted by Judge Lazarus, a county court judge temporarily assigned to circuit court. After the conviction was affirmed on appeal, pe…
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KLEIN, J.
Petitioner was convicted after a trial conducted by Judge Lazarus, á county court judge who had been temporarily assigned to circuit court. After petitioner’s conviction was affirmed, he then moved for post-conviction relief, which was also assigned to Judge Lazarus. During the post-conviction proceeding, petitioner moved to disqualify Judge Lazarus for bias and because there was no order in effect assigning him to circuit court. We find no merit in the bias argument but grant the petition for writ of prohibition based on the lack of an order of assignment.
After filing his motion for post-conviction relief, petitioner obtained all orders assigning Judge Lazarus to circuit court and discovered there was no order currently in effect. Judge Lazarus denied petitioner’s motion to disqualify, however, citing Wasley v. State, 254 So. 2d 243 (Fla. 4th DCA 1971). In Wasley, this court held that a temporary assignment of a circuit judge from a different circuit to try a case would extend through post-verdict motions; however, we also held that the assignment to try the case did not extend to a post-conviction motion filed after the conclusion of an appeal. Wasley accordingly supports petitioner’s position.
The state has cited no authority which would authorize this judge to rule on the post-conviction motion, but argues that this court lacks jurisdiction to review orders assigning county judges to circuit court duty based on Wild v. Dozier, 672 So. 2d 16 (Fla.1996). Wild, however, involved the validity of an administrative order assigning a county judge to circuit court duty. Our supreme court has exclusive jurisdiction over the assignment of judges under Article V, § 2(b), Florida Constitution. The present case is distinguishable from Wild in that it does not involve the validity of an assignment order, but rather whether, where an assignment order has expired, a county judge can rule on a motion for post-conviction relief. Under Wasley the court cannot. We therefore grant the petition and remand for consideration of the post-conviction motion by a circuit court judge.
FARMER, C.J., and HAZOURI, J., concur.
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Kitchen v. State, 965 So. 2d 252 (Fla. 4th DCA 2007)…hat the orders assigning Judge Nelson to the circuit court were filed. This court has the authority to review whether an administrative order is still in effect, as this question was different than whether an assignment was valid. See Diaz v. State, 868 So. 2d 1281, 1282 (Fla. 4th DCA 2004). We find that Kitchen’s argument regarding jurisdiction fails. “Jurisdiction is determined by the court, not the judge.” McNealy v. State, 549 So. 2d 248, 250 (Fla. 5th DCA 1989). While it appears from the record that the…
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Diaz v. State, 868 So. 2d 1282 (Fla. 4th DCA 2004)…PER CURIAM. Reversed. See Diaz v. State, No. 4D03-4016, 868 So. 2d 1281, 2004 WL 626128 (Fla. 4th DCA Mar.31, 2004). FARMER, C.J., WARNER and KLEIN, JJ., concur.…
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Combs v. State, 944 So. 2d 1067 (Fla. 4th DCA 2006)…re is no current order of assignment permitting the county court judge to preside over petitioner’s pending post-conviction motions. Accordingly, we remand for consideration of the post-conviction motions by a circuit court judge. See Diaz v. State, 868 So. 2d 1281 (Fla. 4th DCA 2004).1 Finally, we deny petitioner’s request that we remand for consideration as to whether he must surrender pending resolution of his post-conviction motions. Appellant’s conviction and sentence have been affirmed on appeal. See Co…
Authorities Cited
- The Honorable Joe A. Wild v. Dozier, 672 So. 2d 16 (Fla. 1996)
- Wasley v. State, 254 So. 2d 243 (Fla. 4th DCA 1971)