JASPER JAY HARRISON, PETITIONER,
v.
PATRICIA JOHNSON, RESPONDENT
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Harrison petitioned for a writ of certiorari challenging the circuit court's failure to rule on his motions to disqualify the trial judge and reassign his case. The First District Court of Appeal treated the petition as seeking writs of prohibition and mandamus but denied both remedies because Harrison failed to properly serve his disqualification motion on the trial judge as required by rule.
Neither prohibition nor mandamus relief is warranted. Prohibition does not lie because Harrison failed to properly serve his disqualification motion on the trial judge as required by rule 2.160(c), which is a prerequisite for the 30-day ruling requirement under rule 2.160(j). Mandamus does not lie because Harrison has not brought his motion to reassign before the trial court for a ruling.
[1] A petition for writ of certiorari is not the proper procedural vehicle to seek disqualification of a trial judge or to compel a ruling on a motion to reassign a case.
[2] A writ of prohibition is the appropriate remedy to seek disqualification of a trial judge.
Previewing 2 of 6 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“Harrison's motion for disqualification fails to show proper service on the trial judge, as required by the rule. As a consequence, rule 2.160(j), which mandates that the trial judge rule on the motion for disqualification within 30 days after service of the motion in compliance with subdivision (c), failing which the motion is deemed granted, is not implicated in this case.”
Establishes that proper service under rule 2.160(c) is a prerequisite to invoking the mandatory 30-day ruling requirement under rule 2.160(j)
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Join FLexlaw to unlock all legal intelligenceJasper Jay Harrison filed a motion to disqualify the trial judge and a motion to reassign his case to another judge. The circuit court did not timely …
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PER CURIAM.
By petition for writ of certiorari, Jasper Jay Harrison complains that the circuit court has failed to take timely action on his motion to disqualify the trial judge and his motion to reassign his case to another judge. To the extent he seeks an order-of this court disqualifying the trial judge, his proper remedy is through writ of prohibition, and to the extent he seeks to compel a ruling by the circuit court on his motion to reassign, mandamus is the more apt procedural vehicle. We therefore treat the petition as seeking such relief. See Fla. R.App. P. 9.040(c).
We conclude, however, that neither prohibition nor mandamus relief is warranted at this point. In addressing motions for disqualification, Florida Rule of Judicial Administration 2.160(c) provides that in addition to filing the motion with the clerk, the movant is.required to serve a copy thereof on the subject judge. Harrison’s motion for disqualification fails to show proper service on the trial judge, as required by the rule. As a consequence, rule 2.160(j), which mandates that the trial judge rule on the motion for disqualifiea tion within 30 days after service of the motion in compliance with subdivision (c), failing which the motion is deemed granted, is not implicated in this case. Accordingly, because petitioner has not yet properly served his motion for disqualification of the trial judge, prohibition will not lie.
Similarly, because petitioner has not brought his motion to reassign before the trial court in order to obtain a ruling thereon, we decline to grant mandamus relief in the form of an order compelling the trial court to make such a ruling. See Moore v. Correctional Medical Services, 817 So. 2d 963 (Fla. 1st DCA 2002) (in an ordinary civil case, mandamus will generally not lie absent a showing that the trial court has failed to take action on some pending matter that has been noticed for hearing).
Accordingly, we deny the petition for writ of prohibition or mandamus. This disposition is without prejudice to Harrison’s right to cure his error in failing to properly serve his motion for disqualification on the trial judge and to thereafter obtain a ruling on that motion or, if no ruling is timely made, to invoke the remedy set forth in rule 2.1600').
BENTON, POLSTON, and THOMAS, JJ., concur.
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Johnson v. State, 968 So. 2d 61 (Fla. 4th DCA 2007)…where the judge did not rule within thirty days after service of the motion, even though the ruling was only one day late and petitioner’s counsel acquiesced in setting a hearing on the motion outside the thirty-day time frame); Harrison v. Johnson, 934 So. 2d 563 (Fla. 1st DCA 2006) (stating that, to the extent a movant seeks to compel a ruling by the circuit court on his motion to reassign, mandamus is the proper remedy). The state argues in its response that Johnson’s motion for disqualification was a nul…
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Tobi Rowe v. Duetche Bank Nat'l Tr. Co. as indenture Tr. for Am. Home Mortg. Inv. Tr. 2005-2, 49 So. 3d 1285 (Fla. 1st DCA 2010)…he clerk to reassign the case. Making such a demand is required in order to establish an entitlement to this court’s intervention by writ of mandamus. See KKP Holdings, LLC v. Russell, 1 So. 3d 1287 (Fla. 1st DCA 2009); see also Harrison v. Johnson, 934 So. 2d 563 (Fla. 1st DCA 2006) (denying mandamus relief where petitioner had failed to bring motion for reassignment before the trial court in order to obtain a ruling). Accordingly, the petition for writ of mandamus is DENIED as premature. PADOVANO, ROBERTS…
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Baker v. State, 230 So. 3d 173 (Fla. 1st DCA 2017)…alify nullifies the portion of Florida Rule of Judicial Administration 2.330(j) that provides that such a motion is deemed granted if not ruled upon within 30 days. See, e.g., McCray v. State, 151 So. 3d 449 (Fla. 1st DCA 2014); Harrison v. Johnson, 934 So. 2d 563 (Fla. 1st DCA 2006); Marquez v. State, 11 So. 3d 975 (Fla. 3d DCA 2009). There is no case which holds, however, that improper service alone is a sufficient reason to deny a motion once received. In Leila Corp. of St. Pete v. Ossi Consulting Enginee…
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- Moore v. Corr. Med. Servs., 817 So. 2d 963 (Fla. 1st DCA 2002)