STATE OF FLORIDA, PETITIONER,
v.
RICHARD L. GRESHAM, RESPONDENT

Fla. 5th DCA | 2017-03-31
No. Case No. 5D17-0665
SAWAYA, PALMER and BERGER, JJ., concur.
214 So. 3d 780 Florida District Court of Appeal, Fifth District (2017) Positive Treatment
Cited by 3 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

The Florida Supreme Court granted the State's petition for a writ of prohibition, holding that the trial judge was properly disqualified based on prejudicial comments about a motion to suppress. The court also concluded the State's disqualification motion was timely filed, despite occurring after an initial hearing, because the judge's reassignment to the case made the earlier filing unnecessary.


Holding

The motion to disqualify was timely filed. The judge's prejudicial comments were sufficient to put a reasonably prudent person in well-founded fear of not receiving a fair or impartial hearing. The 10-day time limit for filing a disqualification motion did not begin to run until February 6, 2017, when the senior judge was reassigned to the case, not from the January 23, 2017 initial hearing when he was only temporarily assigned.


Headnotes

[1] Comments by a judge that create a well-founded fear of not receiving a fair or impartial hearing or trial are grounds for disqualification.

[2] A judge's fear of bias giving rise to a disqualification motion must be objectively reasonable.

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Key Quotes

“comments were sufficient to put a reasonably prudent person in well-founded fear of not receiving a fair or impartial hearing or trial”

Establishes the standard for judicial disqualification based on prejudicial comments

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Facts & Procedural History

A senior judge temporarily assigned to hear a motion to suppress made comments on January 23, 2017 indicating prejudgment of the motion, stating he wo…

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Opinion of the Court
PER CURIAM.

*781PER CURIAM.

The State of Florida petitions for a writ of prohibition following the denial of its motion to disqualify the senior trial court judge from presiding over Richard Gresham’s case. Because the motion was legally sufficient and timely, we grant the writ. See Fla. R. Jud. Admin. 2.330.

This case involves the prejudgment of a motion to suppress by a senior judge temporarily assigned to the case. After a review of the record, we conclude the comments were sufficient to put a reasonably prudent person in well-founded fear of not receiving a fair or impartial hearing or trial.1 See Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213, 1215 (Fla. 5th DCA 2001) (holding that fear of judicial bias giving rise to disqualification motion must be objectively reasonable (citation omitted)); see also Pilkington v. Pilkington, 182 So.3d 776, 779 (Fla. 5th DCA 2015) (“Disqualification based upon comments by a judge is required only when they indicate the judge has prejudged the case or is biased.” (citing Wargo v. Wargo, 669 So.2d 1123, 1124-25 (Fla. 4th DCA 1996))); Minaya v. State, 118 So.3d 926, 929 (Fla. 5th DCA 2013) (“Although a judge may form mental impressions and opinions during the course of hearing evidence, he or she may not prejudge the case.” (emphasis added) (citing Wargo, 669 So.2d at 1124-25)).

Thus, the only question that remains is whether the motion was timely. We conclude that it was. The initial hearing took place on January 23, 2017. It was at that hearing that the senior judge made the comments providing the basis for the motion. The State did not file the motion to disqualify at that time because the judge told defense counsel:

Okay. The reason I say is that I am not going to be—I won’t see this case again. So the next judge may look at the facts differently than mine [sic]. ...

A new hearing was set and subsequently reset after the State had difficulty securing a witness. The senior judge was not assigned to hear the motion. Therefore, the issue was moot.

The case was set for trial on February 6, 2017 and unexpectedly reassigned to the senior judge. On February 7, 2017, the State filed its motion to disqualify the senior judge. The motion was denied as legally insufficient, citing Florida Rule of Judicial Administration 2.330(e), which is the timeliness subsection. On February 8, 2017, the State filed an amended motion, specifically arguing that the necessity to file the motion after the initial hearing became moot once the senior judge was not assigned to hear it. On February 10, 2017, the motion was denied as legally insufficient and successive.

Rule 2.330(e) provides:

Time. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.

*782Because the senior judge was only temporarily assigned to hear the motion to suppress on January 23, and there was no indication he would be presiding over the case after that day, there was no need for the State to file the motion to disqualify at that time. The matter only became an issue once the senior judge was reassigned to the case on February 6. We therefore conclude the motion was timely as the 10-day time-limit under the rule did not begin to run until February 6, 2017. Accordingly, we grant the writ of prohibition.

PETITION GRANTED.

SAWAYA, PALMER and BERGER, JJ., concur.


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