STEVEN ALBERT BERUBE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Steven Berube appealed an order denying his postconviction relief motion, arguing that the trial judge lacked authority to rule on it because a disqualification motion was deemed granted when the judge failed to rule within 30 days as required by Florida Rule of Judicial Administration 2.330(j). The court reversed and remanded, holding that the judge's failure to timely rule on the disqualification motion automatically disqualified him from further proceedings.
No. Under Rule 2.330(j), when a judge fails to rule on a disqualification motion within 30 days of service, the motion is automatically deemed granted, and the judge loses authority to hear the case. The postconviction court therefore had no authority to deny Berube's postconviction relief motion.
[1] A motion to disqualify a judge is deemed granted if the judge fails to rule on the motion within thirty days of its service.
[2] A postconviction court lacks authority to rule on a motion for postconviction relief after a motion to disqualify the presiding judge has been deemed granted.
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Join FLexlaw to unlock all legal intelligence“The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.”
The controlling rule that automatically grants a disqualification motion when the judge fails to rule within 30 days, establishing the legal basis for reversal.
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Join FLexlaw to unlock all legal intelligenceBerube filed a motion for postconviction relief on April 14, 2005, and was granted an evidentiary hearing. On August 26, 2005, he filed a motion to di…
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WALLACE, Judge.
Steven Albert Berube appeals an order denying his motion for postconviction relief. Because the postconviction court entered its order after Mr. Berube’s motion seeking the disqualification of the judge assigned to the case was deemed granted, the postconviction court had no authority to rule on the motion. Accordingly, we reverse the order denying the postconviction motion and remand for further proceedings before a different judge.
The Facts and Procedural History
On April 14, 2005, Mr. Berube filed his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. After considering the State’s response to the motion, the postconviction court granted Mr. Berube an evidentiary hearing on his two claims of ineffective assistance of counsel. On August 26, 2005, Mr. Berube filed a motion to disqualify Judge Richard A. Luce from presiding over the matter. The certificate of service attached to the disqualification motion indicated that a copy of the motion had been served by mail on both the State Attorney and on Judge Luce. The date on the certificate of service was August 23, 2005.
On September 26, 2005, Mr. Berube filed a motion requesting the reassignment of the case to another judge. In this motion, Mr. Berube asserted that the case should be reassigned to another judge because Judge Luce had not ruled on the disqualification motion within thirty days as required by Florida Rule of Judicial Administration 2.160(j).1 On November 3, 2005, Judge Luce entered an order “dismissing” the disqualification motion on the ground that it was untimely filed. On the same day that it dismissed his disqualification motion, the postconviction court appointed the public defender to represent Mr. Berube on his postconviction motion. Approximately six months later, the postconviction court held an evidentiary hearing on the postconviction motion. After the hearing, the postconviction court entered an order denying the postconviction motion, and Mr. Berube timely filed his notice of appeal.
Discussion
Rule 2.330(j) of the Florida Rules of Judicial Administration controls the result in this case. The rule provides:
The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, 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). Thus, once Mr. Berube properly filed and served his motion to disqualify as provided in the rule, the postconviction court was required to rule on the motion within thirty days of its service. Under the rule, the motion is deemed granted because the postconviction court did not rule on it within thirty days. See Schisler v. State, 958 So. 2d 503, 505 (Fla. 3d DCA 2007). The postconviction court’s omission to rule on the motion within thirty days of its service entitled Mr. Berube to an order directing the clerk of the court to reassign the case. Johnson v. State, 968 So. 2d 61, 63 (Fla. 4th DCA 2007); Schisler, 958 So. 2d at 504.
Because the motion to disqualify was deemed granted under the rule, the post-conviction court had no authority to hear and determine Mr. Berube’s motion for postconviction relief. See Goolsby v. State, 914 So. 2d 494, 496 (Fla. 5th DCA 2005); Jenkins v. Motorola, Inc., 911 So. 2d 196, 197 (Fla. 3d DCA 2005). Accordingly, we reverse the order denying Mr. Berube’s postconviction motion, and we remand for further proceedings on the motion. On remand, the case shall be reassigned to a different judge.
Reversed and remanded with instructions.
SILBERMAN and CANADY, JJ., Concur. . In 2006, rule 2.160 was renumbered as rule 2.330. See In re Amendments to the Florida Rules of Judicial Administration—Reorganization of the Rules, 939 So. 2d 966, 1003-04 (Fla.2006).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Marquez v. State, 11 So. 3d 975 (Fla. 3d DCA 2009)…n 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’…
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Berube v. State, 33 So. 3d 102 (Fla. 2d DCA 2010)…iled to timely rule on Berube’s motion for the judge’s disqualification and, under the rules of judicial administration, was for that reason deemed disqualified. We remanded the case for further proceedings before a different judge. Berube v. State, 978 So. 2d 893 (Fla. 2d DCA 2008). On remand, the successor judge accepted the State’s assertion that she need not conduct a new evidentiary hearing, but instead could dispose of Berube’s claims based on her review of the transcript of the previous hearing. Not s…
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Alonzo v. Lightsey, 53 So. 3d 1093 (Fla. 1st DCA 2011)…within the time provided by Florida Rule of Judicial Administration 2.330(j). Under that rule, the motion is therefore deemed granted and petitioner is entitled to reassignment of his postconviction motion to a different judge. See Berube v. State, 978 So. 2d 893 (Fla. 2d DCA 2008). We therefore grant the petition and quash the order which denied the motion for disqualification. The cause is remanded to the circuit court with directions that the motion for postconviction relief be reassigned to a different j…
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
- In re Amendments to the Florida Rules of Judicial Administration-Reorganization of the Rules, 939 So. 2d 966 (Fla. 2006)
- Schisler v. State, 958 So. 2d 503 (Fla. 3d DCA 2007)
- Emmet Black v. State, 914 So. 2d 494 (Fla. 4th DCA 2005)
- Oza Jenkins v. Motorola, Inc., 911 So. 2d 196 (Fla. 3d DCA 2005)
- Goolsby v. State, 914 So. 2d 494 (Fla. 5th DCA 2005)
- Shaheed Hamilton v. State, 968 So. 2d 61 (Fla. 4th DCA 2007)
- Johnson v. State, 968 So. 2d 61 (Fla. 4th DCA 2007)