RENE MARQUEZ, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Marquez petitioned for a writ of prohibition seeking disqualification of his trial judge after his convictions for lewd and lascivious molestation were affirmed on appeal. The court denied the petition because the motion to disqualify lacked a certificate of service showing the trial judge was personally served, as required by the Florida Rules of Judicial Administration.
The petition for writ of prohibition is denied because the motion for disqualification did not contain a certificate of service reflecting that the motion was served on the trial judge as required by Florida Rule of Judicial Administration 2.330(c)(4).
[1] A petition for writ of prohibition seeking disqualification of a trial judge will be denied if the motion for disqualification lacks a certificate of service reflecting s…
[2] Under the Florida Rules of Judicial Administration, a motion to disqualify a trial judge must be served on the subject judge in addition to being filed with the clerk.
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Join FLexlaw to unlock all legal intelligence“if a motion to disqualify a trial judge is not ruled on within thirty days, 'the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.'”
Establishes the automatic deeming granted provision when trial courts fail to rule timely on disqualification motions
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Join FLexlaw to unlock all legal intelligenceMarquez was convicted of lewd and lascivious molestation and lewd and lascivious conduct, and his convictions were affirmed on appeal in 2008. In Nove…
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This is a petition for writ of prohibition seeking disqualification of the trial judge. We deny the petition because there is no certificate of service reflecting service on the trial judge.
Rene Marquez was convicted of lewd and lascivious molestation and lewd and lascivious conduct and his convictions were *976affirmed without opinion in 2008. Marquez v. State, 990 So.2d 1077 (Fla. 3d DCA 2008) (table). In November 2008, defendant-petitioner Marquez filed a motion to disqualify the trial judge. The judge did not rule on the motion within thirty days.
The defendant filed a motion seeking reassignment of the case to a new judge. The trial court denied the motion and the defendant has filed a petition for writ of prohibition.*
Under the Florida Rules of Judicial Administration, if a motion to disqualify a trial judge is not ruled on within thirty days, “the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.” Fla. R. Jud. Admin. 2.330(j); see Berube v. State, 978 So.2d 893 (Fla. 2d DCA 2008); Johnson v. State, 968 So.2d 61 (Fla. 4th DCA 2007); Schisler v. State, 958 So.2d 503 (Fla. 3d DCA 2007); see also Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003).
We deny the petition because the defendant’s motion does not contain a certificate of service showing that the motion for disqualification was served on the trial judge. Rule 2.330(c)(4) provides in part, “In addition to filing 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.” The intent of the rule is to be sure that the motion comes to the personal attention of the trial judge as soon as possible.' The Fourth District has said, and we agree, that prohibition will be denied where the petitioner did not serve a copy of the motion for disqualification on the trial judge as required by the rule. Johnson, 968 So.2d at 63 n. 2. The certificate of service on the motion for disqualification reflects only that the defendant placed the motion in the hands of the prison officials for mailing, but does not reflect that a copy was served on the trial judge. We therefore deny the petition.
Petition denied.
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Overcash v. Overcash, 91 So. 3d 254 (Fla. 5th DCA 2012)…ice. 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) (denying writ of prohibition where the motion’s certificate of service did not reflect service of the motion to the trial judge and there was no other proof of compliance with Florida Rule of Civil Procedure 1.080). Here, alt…
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Whitaker v. Merkison, 69 So. 3d 1090 (Fla. 1st DCA 2011)…PER CURIAM. ■ DENIED. See Marquez v. State, 11 So. 3d 975 (Fla. 3d DCA 2009). THOMAS, WETHERELL, and SWANSON, JJ., concur.…
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Brown v. State, 117 So. 3d 440 (Fla. 1st DCA 2013)…PER CURIAM. The writ of prohibition is denied on the merits. See Marquez v. State, 11 So. 3d 975 (Fla. 3d DCA 2009). VAN NORTWICK, MARSTILLER, and RAY, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tableau Fine ART Grp., Inc. v. Jacoboni, 853 So. 2d 299 (Fla. 2003)
- Schisler v. State, 958 So. 2d 503 (Fla. 3d DCA 2007)
- Berube v. State, 978 So. 2d 893 (Fla. 2d DCA 2008)
- Shaheed Hamilton v. State, 968 So. 2d 61 (Fla. 4th DCA 2007)
- Johnson v. State, 968 So. 2d 61 (Fla. 4th DCA 2007)