Motion to Recuse Judge

VERIFIED MOTION TO DISQUALIFY AND

INCORPORATED MEMORANDUM OF LAW

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rule 2.330, Florida Rules of Judicial Administration, and hereby files this Verified Motion to Disqualify and Incorporated Memorandum of Law, and in support thereof, states as follows:

1. Rule 2.330, Fla. R. Jud. Admin. allows a party to seek disqualification of the assigned trial judge where the party feels he will not receive a fair trial or hearing because of a specifically described prejudice or bias of the judge. Rule 2.330 (f), Fla. R. Jud. Admin. provides that, upon receipt of a legally sufficient motion to disqualify, “the judge shall immediately enter an order granting disqualification and proceed no further in the action.”
2. The principal facts constituting the grounds for this Motion were discovered in October. They are being presented to the Court for an immediate ruling.  Thus, this motion is timely filed.
3. This Motion is filed with all due respect to the Court. Under the circumstances as outlined below, Counsel, has an ethical responsibility as advocate to seek the remedy of disqualification.

4. The Defendant fears he will not receive a fair hearing, because of the Court’s continuing demonstrable prejudice against him.
5. A recitation of the facts forming the basis for this fear will demonstrate this fear is well-founded.
6. During the pendency of this case, certain actions were taken and statements made by the Court, the significance of which was not manifest until the hearing in October.
7. In February, the Defendant was arrested for three counts of violation of injunction for protection against domestic violence.
8. In March, the Defendant was charged with three counts of violation of injunction for protection against domestic violence, in violation of §741.31(4)(a)5, Fla. Stat., a first degree misdemeanor, in each of the three referenced cases.
9. The Office of the Public Defender was appointed to represent the Defendant.
10. The Defendant, who had no prior record, was released on a substantial monetary bond of $30,000 per case, and a GPS monitor.
11. In May, the Defendant entered pleas of no contest in each of the three cases, and was to be adjudicated guilty, and sentenced to 10 months in the Duval County Jail.
12. Sentencing was scheduled for June, and the Defendant was permitted to remain out on bond.
13. A few days before the June sentencing hearing, the Defendant hired undersigned counsel, who requested a continuance of the sentencing, in order to investigate the case, review the Assistant Public Defender’s file, and order the transcript of the plea hearing.
14. The State did not object to a continuance and the sentencing was continued in July, and then at the Court’s request, moved to the end of July.
15. Defense counsel filed a Motion to Declare Defendant Indigent for Costs, and specifically for the cost of the transcript of the plea hearing. Thus, the process of ordering the transcript took additional time, and required approval from the Court and the JAC.  The transcript was not ready by the July sentencing date.
16. Defense counsel prepared Defendant’s Motion to Withdraw Pleas but did not file it, because the transcript had not been obtained.
17. In July, defense counsel asked for an additional continuation of the sentencing date, in order to receive the transcript. The Court announced at sidebar that he would not continue the sentencing, and planned to take the Defendant into custody to commence his sentence at that time.
18. Defense counsel filed the Motion to Withdraw Pleas in court, prior to the defendant being sentenced. The court denied the motion, and stated he would entertain the motion, after the transcript was obtained.
19. The Defendant has been in custody since July.
20. In August, after receiving and reviewing the transcript, and the Assistant Public Defender’s file, defense counsel filed a Motion to Reconsider Defendant’s Motion to Withdraw, Set Aside, and/or Vacate Plea.
21. In August, defense counsel filed a Supplemental Memorandum of Law on the Motion.
22. A hearing on the Motion to Reconsider was scheduled for the month of September.
23. One of the grounds to withdraw his pleas was that defendant had not been properly advised by the Assistant Public Defender regarding the immigration consequences of his pleas.
24. The State did not subpoena or call any witnesses at the hearing. Defense counsel presented witnesses, including the defendant, who testified he had not been advised of by his attorney of the immigration consequences of his plea.  The Court then stated it needed to hear testimony from the Assistant Public Defender, who represented the Defendant when he entered his plea, and asked the State if she planned to call Mr. M.  When the State said she did not, on the Court’s own motion, the Court continued the case to the week of October, and instructed the State to have Mr. M. present that week.
25. In October, the Court informed counsel for the State and Defense that he had ordered and filed transcripts of previous court hearings in these cases. The Court then provided counsel copies of transcripts from pretrial hearings in these matters through the month of March, which were transcribed, at the Court’s request, in September, after the commencement of the hearing on the defendant’s motion.

 MEMORANDUM OF LAW

Rule 2.330, Fla. R. Jud. Admin., allows a party to seek disqualification of the assigned trial judge where the party feels he will not receive a fair trial or hearing because of a specifically described prejudice or bias of the judge.  Rule 2.330(f), Fla. R. Jud. Admin. provides that, upon receipt of a legally sufficient motion to disqualify, “the judge shall immediately enter an order granting disqualification and proceed no further in the action.”

The Defendant believes the Court is prejudiced against him.  The Court has taken on the role of advocate for the State, and is no longer an impartial arbitrator in this matter. The actions of the court in (1) directing the State to call an additional witness, (2) continuing the hearing to permit the State to call that witness, and (3) after continuing the hearing, conducting its own research, by ordering transcripts from previous pretrial hearings, demonstrate the Court’s bias.  Thus, the Defendant’s fear that he will not receive a fair hearing is well-founded, objective, and reasonable.

“When a judge enters into the proceedings and becomes a participant or an advocate, a shadow is cast upon judicial neutrality.” R.O. v. State, 46 So. 3d 124, 126 (Fla. 3d DCA 2010); see also Williams v. State, 160 So. 3d 541, 544 (Fla. 4th DCA 2015). Trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle. See Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993) (holding that a trial judge’s provision of strategic advice to a party during a trial demonstrated impermissible bias); see also J.F. v. State, 718 So.2d 251 (Fla. 4th DCA 1998) (disapproving a trial judge who assisted with a delinquency prosecution by requesting the production of additional State’s evidence).

“Prejudice of a judge is a delicate question to raise, but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge against whom raised should be prompt to recuse himself.”  Livingston v. State, 441 So.2d 1083, 1085 (emphasis added).  Where there is any legally sufficient basis, whether factually accurate or not, for a founded fear of possible prejudice to exist in the mind of a defendant, recusal is mandated.  See, e.g., Management Corporation of America, Inc. v. Grossman, 396 So.2d 1169 (Fla. 3^rd DCA 1981).

A motion to disqualify a judge must establish a fear on the part of the movant that he or she will not receive a fair and impartial hearing.  See, Quince v. State, 592 So. 2d 669, 670 (Fla. 1992).  The instant motion clearly establishes such a fear.  The motion “must be well-founded and contain facts germane to the judge’s undue bias, prejudice, or sympathy.”  Rivera v. State, 717 So. 2d 477, 480-81 (Fla. 1998).  The instant motion is well founded, based on the record, and respectfully consists of germane facts showing the bias and prejudice of the Court.

In determining the legal sufficiency of a motion to disqualify, a court looks to see whether the facts alleged would place a reasonably prudent person in fear of not receiving fair and impartial treatment from the trial judge.  See, e.g., Johnson v. State, 769 So. 2d 990 (Fla. 2000).  In the instant case, a reasonably prudent person, would be in fear that the Court, because of its prejudice or bias deprived him of fair and impartial treatment.

The fear of judicial bias must be objectively reasonable.  State v. Shaw, 643 So. 2d 1163, 1164 (Fla. 4^th DCA 1994).  A subjective fear is insufficient.  See, e.g., Kowalski v. Boyles, 557 So. 2d 885 (Fla. 5^th DCA 1990).  While the Defendant clearly possesses a subjective fear (it being his, it is by definition subjective), his fear is also objective, as it is based on demonstrable, extant facts replete in the record, both written and of proceedings.  Thus, he has shown an objectively reasonable fear that he will not receive a fair trial or hearing in this cause, based on a specifically described prejudice or bias of this Court.

WHEREFORE, Defendant prays this Honorable Court enter an Order of Recusal.