DONALD ALAN TOBKIN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 4th DCA | 2004-11-24
No. 4D04-2731
FARMER, C.J., and STEVENSON, J., concur.
889 So. 2d 120 Florida District Court of Appeal, Fourth District (2004) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A criminal defendant sought a writ of prohibition to disqualify a judge presiding over an indirect criminal contempt proceeding arising from a domestic violence case. The Fourth District Court of Appeal denied the petition, holding that no violation of the thirty-day ruling requirement occurred where the judge was not effectively served with the recusal motion due to the moving party's use of an outdated address.


Holding

The petition for writ of prohibition is denied. No Tableau violation occurred because the judge did not receive actual notice of the motion until June 9, through no fault of his own, making the thirty-day period inapplicable. The trial court had authority to rule, and the motion was legally insufficient to require recusal on the merits.


Headnotes

[1] A motion for judicial disqualification must be ruled upon within thirty days of its presentation to the court.

[2] Presentation of a motion for judicial disqualification requires filing with the clerk and immediately sending a copy to the subject judge.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“a motion for judicial disqualification filed pursuant to Florida Rule of Judicial Administration 2.160 must be ruled on within thirty days following its presentation to the court.”

Establishes the core Tableau requirement at issue in this case regarding timely ruling on recusal motions.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

On April 30, 2004, petitioner Tobkin moved for recusal of Judge Robert W. Lee. The motion was filed with the clerk and sent to an outdated courthouse …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
GROSS, J.

GROSS, J.

This case is a petition for writ of prohibition seeking to prevent Judge Robert W. Lee from continuing to preside over an indirect criminal contempt proceeding which arose out of a domestic violence case. We deny the petition.

We write primarily to address one issue — whether the petition should be granted because the motion for recusal was not ruled upon within the thirty-day time limit required by Tableau Fine Art Group, Inc. v. Jacoboni, 853 So. 2d 299 (Fla.2003).

On April 30, 2004, petitioner moved for recusal and disqualification of Judge Lee. Judge Lee denied the motion on June 15, 2004. In the order, the trial judge explained that he did not become aware of the motion until June 9, when he received another filing from petitioner. Judge Lee first read the motion on June 10, when the “Clerk of the Court realized that its office had simply filed the Motion in the Court file rather than forwarding it to the assigned Judge.” The certificate of service on petitioner’s motion reflects that it was sent to Judge Lee at the Broward County Courthouse.

However, Judge Lee had not been at that location since August 2003, when he was transferred to a division at a satellite courthouse in Hollywood. Judge Lee first received an actual copy of the motion on June 14, when the file was received at the satellite courthouse from the main courthouse. The judge ruled the next day.

Tableau requires that “a motion for judicial disqualification filed pursuant to Florida Rule of Judicial Administration 2.160 must be ruled on within thirty days following its presentation to the court.” Id. at 302-03. The court “believefd] that thirty days gives the trial court sufficient time to determine the sufficiency of a motion.” Id. at 303. The method of “presentation to the court” contemplated by Florida Rule of Judicial Administration 2.160(c) is to file the motion with the clerk coupled with “immediately [sending] a copy of the motion to the subject judge.”

Both Tableau and the rule presuppose that the judge who is the subject of the disqualification motion will be aware of the motion, so that there can be an “immediate ruling.” In Tableau, the judge was aware of the motion for recusal and yet did not rule until more than thirty days had passed. Here, through no fault on his part, the judge did not know that the motion existed until June 9. In part, the fault lies with petitioner, who mailed a copy of the motion to the judge at a stale address. Under these circumstances, there has been no Tableau violation, such that the automatic recusal provision does not apply.

We note that the recently adopted amendments to Rule .2.160, effective on January 1, 2005, tie the timeliness of a ruling to service of the motion. See Amendments to Fla. R. of Jud. Admin. 2.160, FL Order 04-17 (Fla. Oct. 7, 2004).

Amended Rule 2.160(c) will require that, in addition to filing the recusal motion with the clerk, the movant shall “immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.” Florida Rule of Civil Procedure 1.080(b) allows service by mail to “a last known address.” Judges’ offices are a matter of public record. Our holding in this case requires service in a manner designed to notify the judge of the existence of the motion. Under the new rule, we believe a mailing should be to the judge’s chambers as of the date of motion. Amended Rule 2.160(j) requires the judge to rule on the motion “no later than 30 days after the service of the motion as set forth in subdivision (c).” According to Florida Rule of Civil Procedure 1.080(b), “[sjervice by mail shall be complete upon mailing.”

On the merits, we agree with the trial judge that the petitioner’s motion was legally insufficient to require recusal.

FARMER, C.J., and STEVENSON, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Johnson v. State, 968 So. 2d 61 (Fla. 4th DCA 2007)
    …nson supplied this court with a copy of Judge Mak-emson’s order dated August 28, 2007, reassigning the case to another judge. Thus, his efforts to disqualify Judge Makemson in this case too are now moot. . There are exceptions. See Tobkin v. State, 889 So. 2d 120 (Fla. 4th DCA 2004) (holding that trial judge’s failure to rule on recusal motion within thirty days after it was filed did not require judge's automatic recusal, where court clerk’s office mistakenly failed to forward motion to judge, the movant ha…
  • …s transmitted a copy of a proposed order of disqualification to him. The reason for the rule requiring service of a motion to disqualify on the judge is to insure that the judge is actually aware of the existence of the motion. See Tobkin v. State, 889 So. 2d 120, 122 (Fla. 4th DCA 2004). In this case, Judge Barton was not actually aware of the existence of the motion until over thirty days after it had been filed. This was due to the means of service chosen by the petitioners, which was not only actually in…
  • Overcash v. Overcash, 91 So. 3d 254 (Fla. 5th DCA 2012)
    …o objects that Petitioner did not file the affidavit of delivery by the process server until after the judge had ruled on the motion to disqualify, but that fact is of no significance. Service is the issue, not proof of service. See Tobkin v. State, 889 So. 2d 120, 122 (Fla. 4th DCA 2004) (reference to Florida Rule of Civil Procedure 1.080 in Rule 2.330(c) “requires service in a manner designed to notify the judge of the existence of the motion”); cf. Marquez v. State, 11 So. 3d 975, 976 (Fla. 3d DCA 2009) (d…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw