EULIE POLANCO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eulie Polanco appealed her first-degree murder conviction by seeking postconviction relief based on ineffective assistance of counsel for failing to file a disqualification motion against the trial judge. The Fourth District Court of Appeal affirmed the trial court's summary denial of her postconviction relief claims.
The court held that appellant's disqualification claim was legally insufficient because it was based on rumors and courthouse gossip rather than firsthand knowledge, lacked proper affidavits with personal knowledge as required by Florida Rules of Judicial Administration, and did not establish the standard that a reasonably prudent person would fear not receiving a fair trial. The remaining postconviction claims also failed as either legally insufficient, conclusively refuted by the record, or failing to show necessary prejudice under Strickland.
[1] To establish ineffective assistance of counsel for failure to file a motion for disqualification, a defendant must demonstrate that a facially sufficient claim for disqua…
[2] A motion for disqualification of a judge cannot be based on rumors or gossip.
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“A legally sufficient motion for disqualification cannot be based upon rumors or gossip.”
Establishes the fundamental principle that disqualification motions require more than hearsay and rumor.
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Join FLexlaw to unlock all legal intelligencePolanco was convicted of first-degree murder. Before her direct appeal but after her conviction, trial counsel drafted (but did not file) a motion for…
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WARNER, J.
Appellant moved for posteonviction relief from her conviction for first-degree murder. The trial court summarily denied the claim. We affirm on all issues.
Most prominently, appellant claims that her counsel should have filed a motion for disqualification of the trial judge. In order to establish a claim of ineffectiveness for failure to file a motion for disqualification, a defendant must show that a facially sufficient claim of disqualification was present. See Thompson v. State, 990 So. 2d 482 (Fla.2008).
We conclude appellant’s claim is legally insufficient. Appellant attaches an unfiled motion for disqualification, drafted after her conviction but before her direct appeal, reciting specific acts of conduct by the judge, as well as information from other court personnel, regarding the personal life of the judge, which information was learned during the trial. This motion was not signed by anyone, and more importantly, there is no affidavit or certificate from either trial counsel or anyone else asserting that the motion was made in good faith. See Fla. R. Jud. Admin. 2.330(c). Although affidavits are attached to the motion for postconviction relief to support the grounds for disqualification, none of them confirm the acts of personal conduct alleged in the motion. Both the motion and the supporting affidavits rely on information about the trial judge from unnamed court personnel passed to the persons signing the affidavit.1
“A legally sufficient motion for disqualification cannot be based upon rumors or gossip_” Barwick v. State, 660 So. 2d 685, 693 (Fla.1995); see also Dura-Stress, Inc. v. Law, 634 So. 2d 769, 770 (Fla. 5th DCA 1994) (Sharp, J., concurring) (pointing out that no Florida case has allowed disqualification based solely on hearsay. “Although the party moving for disqualification of a judge need not have personal knowledge of the facts asserted in an affidavit filed to establish a basis to disqualify a judge, the affiant clearly must have some first-hand knowledge upon which to swear to the truth of the facts alleged. Otherwise, the affidavit is not truly an affidavit.”) (footnote omitted); Hayslip v. Douglas, 400 So. 2d 553, 556 (Fla. 4th DCA 1981) (although the party’s personal knowledge of the facts set forth in the motion may not be necessary, all requirements of the rule for disqualification must be met, and the supporting affidavits must be “fully credible”).
Finally, the objective information contained in the motion (but not in the affidavits), as opposed to the rumor and courthouse gossip, is legally insufficient to support the standard for disqualification, i.e., that a reasonably prudent person would fear that he or she could not get a fair trial. Id.
We also affirm as to the remaining issues raised. All are either legally insufficient, conclusively refuted by the record, or fail because appellant cannot show the necessary prejudice required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
POLEN and TAYLOR, JJ., concur. . Only one of appellants trial attorneys provided an affidavit, and in it she did not state any information regarding the trial judge, only that the administrative office of the public defender asked her about information on the judge. The more direct statements made in the affidavits of the chief assistant public defender and the appellate public defender are at least double or triple hearsay.
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Citator
Cited By
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Detournay v. City OF Coral Gables, 65 So. 3d 1103 (Fla. 3d DCA 2011)…ly insufficient. See Fla.Code Jud. Conduct Canon 3(B)(7)(d) (“A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.”); Polanco v. State, 993 So. 2d 566 (Fla. 4th DCA 2008) (legally sufficient motion for disqualification must have some first-hand knowledge upon which to swear to truth of allegations). WARNER, LEVINE and CONNER, Associate Judges, concur.…
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Ratley v. State, 148 So. 3d 834 (Fla. 1st DCA 2014)…pported by the record and his request as to Ground One is denied. Failure to seek disqualification of a trial judge may be the basis for an ineffective assistance of counsel claim. See Thompson v. State, 990 So. 2d 482 (Fla.2008); Polanco v. State, 993 So. 2d 566 (Fla. 4th DCA 2008). The circuit court did not find Hatley’s claim to be legally insufficient, and indeed, given the allegations made in the motion for post-conviction relief, the claim was sufficient. See Thompson, and Thompson v. State, 764 So. 2d…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Barwick v. State, 660 So. 2d 685 (Fla. 1995)
- Hayslip v. The Honorable Paul T. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981)
- Thompson v. State, 990 So. 2d 482 (Fla. 2008)
- Dura-Stress, Inc. v. Honorable William G. LAW, Jr., 634 So. 2d 769 (Fla. 5th DCA 1994)