DOUGLAS V. PEEBLES, RELATOR,
v.
THE HONORABLE D. R. SMITH, AS CIRCUIT JUDGE OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR MARION COUNTY, FLORIDA, RESPONDENT
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The court held that the relator failed to establish a prima facie case for disqualification and did not follow the statutory procedure for disqualification.
The relator filed a suggestion for a writ of prohibition seeking to disqualify the respondent judge in a mortgage foreclosure action. The relator alle…
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PER CURIAM.
The relator, Douglas V. Peebles, has filed a suggestion for writ of prohibition whereby he seeks the issuance of a writ of prohibition restraining the respondent from exercising further jurisdiction in the underlying mortgage foreclosure action on ground of the respondent’s alleged disqualification.
The suggestion fails to make out a prima facie case showing that the respondent is disqualified as a matter of law. See State ex rel. Bryan v. Albritton, 114 Fla. 725, 154 So. 830. It affirmatively appears that the relator has not followed the statutory procedure for disqualification, which is prescribed in Chapter 38, Florida Statutes, F.S.A. One of the grounds for disqualification asserted by relator appears to come within the purview of Section 38.02, Florida Statutes, F.S.A., and the other ground under Section 38.10, Florida Statutes, F.S.A. In both instances, the statute requires that a suggestion of disqualification must be filed together with certain supporting data in the trial court. The judge then must enter an order thereon, and if the suggestion of disqualification is denied, such order of denial is appealable. On the mere suggestion made ore tenus before the judge in this case and his verbal order denying same, it does not clearly appear that statutory disqualification existed as a matter of law. Without such a showing, prohibition will not lie.
Accordingly, the suggestion for writ of prohibition is denied.
SPECTOR, Acting C. J., and BOYER and McCORD, JJ., concur.
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Pistorino v. Ferguson, 386 So. 2d 65 (Fla. 3d DCA 1980)…ether the mother’s procedural failure forecloses relief by way of prohibition.2 We are mindful of cases holding that the failure to follow the dictates of the disqualification statute precludes relief by way of prohibition. E. g., Peebles v. Smith, 291 So. 2d 102 (Fla. 1st DCA 1974). Those cases do not involve patent prejudice. Where that exists, courts are quick to provide a remedy even where the statute is not complied with, State v. McFarlane, 318 So. 2d 449 (Fla. 2d DCA 1975) (substitute trial judge orde…
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Douglas v. Peebles, 331 So. 2d 325 (Fla. 1st DCA 1976)…[*326] PER CURIAM. This is the third appearance of this case, on one or another of its facets; Peebles v. Kilday, Fla.App., 257 So. 2d 627; Peebles v. Smith, Fla.App., 291 So. 2d 102; Peebles v. Stillman, Fla.App., 296 So. 2d 671, cert. denied, Fla., 303 So. 2d 640. We have reviewed the record, read the briefs and heard oral arguments, and the Appellant having failed to demonstrate error, the judgment below is AFFIRMED. BOYER,…
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