Florida Judicial - DISQUALIFICATION
Judge who recently issued lengthy sanctions order against law firm in one case disqualified from 3 other pending cases in which law firm is involved. [Added 11/21/19]
Law Firm represented Clients in litigation presided over by Judge. After convening a multi-day evidentiary hearing in that case, Judge handed down “a detailed, fifty-one page sanctions order [against Law Firm] in an unrelated case.” The order imposed sanctions against the individual attorney of record and Law Firm, concluding that “Law Firm ‘[r]epeatedly made unsubstantiated, false, and defamatory allegations in sealed documents and in open court,’ violated the Rules of Professional Conduct, misused attorney-client privileged communications, and participated ‘in a scheme to bring [fabricated criminal] charges.’”
After receiving the sanctions order, Law Firm moved to disqualify Judge in the pending cases in which it was representing Clients, alleging that “they harbored a well-founded fear that, based upon the findings articulated within the sanctions order in the unrelated case, they will not receive a fair trial. Judge denied the motions. Law Firm petitioned for a writ of prohibition from the Third DCA.
The appellate court granted the petition. Under Florida law, adverse rulings or the “mere reporting of perceived . . . unprofessionalism” is insufficient to support judicial disqualification. This matter, however, went beyond that. “[I]n the midst of protracted litigation, petitioners received the sanctions order, penned by the judge slated to serve as the arbiter in their current disputes. The order was rendered after the Law Firm became embroiled in the suits below, as a party to one dispute, and as counsel of record in the remaining two cases. The court signed the order in close temporal proximity to hearings in the underlying cases. The decision deduced that the Law Firm engaged in treacherous conduct, including lying and fabricating allegations of a criminal conspiracy. Further, the tribunal was expansive in the scope of its findings of deceit, equally condemning the actions of the Law Firm and the individual attorney of record.” (Footnotes omitted.)
Accordingly, Law Firm had shown that it and its Clients had a well-founded fear that they would not receive a fair trial if Judge presided over their cases. JJN FLB, LLC v. CFLB Partnership, LLC, __ So.3d __ (Fla. 3d DCA, Nos. 3D19-1875, 3D19-1876, 3D19-1948, 11/6/2019), 2019 WL 5778033.
Judge who did not disclose that he had been represented in his own divorce 3 years ago by party’s lawyer is disqualified from divorce case. [Added 10/2/19]
Judge was presiding over a divorce case. About 3 years prior, Judge was represented in his own contested divorce by Wife’s counsel. Judge did not disclose this on the record. Husband’s counsel learned about it and filed a motion to disqualify Judge, alleging that Husband was concerned that Judge might have a bias in favor of Wife’s counsel and that Husband had a reasonable fear that he would not get a fair trial. Judge denied the motion as legally insufficient. Husband petitioned the Third DCA for a writ of prohibition.
The appellate court granted the petition, ruling that Judge should be disqualified. The Commentary to Canon 3E(1) of the Florida Code of Judicial Conduct states that a judge “should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” In this case, Judge made no such disclosure. The court was of the view that disclosure was required, where one of the lawyers in a contested divorce case had represented Judge in his own similar case 3 years before. “[E]ven if the trial judge genuinely believes no bias exists, reasonable people might consider such prior representation relevant to the issue of the trial judge’s impartiality.” Accordingly, the court concluded that “the husband’s alleged fears of bias and of not receiving a fair trial were objectively reasonable given the trial judge’s prior attorney-client relationship with the wife’s attorney in a divorce proceeding and the trial judge’s failure to disclose the relationship to the former husband.”
The court emphasized that it was not adopting a blanket rule of disqualification in these situations or suggesting any actual lack of impartiality on Judge’s part, but was stating that it is “incumbent upon the trial court to disclose a prior attorney-client relationship with an attorney.” Becker v. Becker, __ So.3d __ (Fla. 3d DCA, No. 3D19-1493, 9/18/2019), 2019 WL 4458397.
Judge who recused himself from case due to “family relationship” with defendant is disqualified from another case brought by different plaintiff against same defendant. [Added 9/5/19]
Lawyer represents Plaintiff in a lawsuit against Defendant, who is a county sheriff. Lawyer also represents other clients in other pending suits against Defendant. The trial judge recused himself from one of those other cases because of his “family relationship” with Defendant. Lawyer then moved to disqualify the judge in Plaintiff’s case. The motion was denied. Lawyer then petitioned the Fourth DCA for a writ of prohibition.
The appellate court granted the petition. “Where a judge has recused himself because of a personal relationship with a party or attorney, that relationship is sufficient to require recusal a short time later when brought to the judge’s attention by motion. . . . ‘‘Any time a judge feels it is necessary to recuse himself from an attorney’s case on account of an overriding friendship with the attorney then he should do so in all, not just some of that attorney’s cases.’’ . . . The same principle applies where a judge recuses himself because of his relationship to a defendant.” [Citations omitted.] Rosales v. Bradshaw, __ So.3d __ (Fla. 4th DCA, No. 4D19-1082, 8/28/2019), 2019 WL 4049518.
Judge disqualified for announcing how he would rule on motion to stay if party filed it. [Added 8/23/19]
Petitioners moved to intervene. The trial judge denied the motion, but also stated that he expected Petitioners to file a motion to stay “because everything gets appealed” and stated that he would deny the motion if Petitioners filed it. As the Third DCA put it, the judge “denied a non-existent motion.”
Petitioners sought to disqualify the judge based on the judge’s comments. The Third DCA agreed. “’[A] judge’s announced policy or predisposition to rule in a particular manner is grounds for disqualification.’ . . . We agree with Petitioners that these remarks, made in the absence of any motion or evidence, are sufficient to leave Petitioners with an objectively reasonable fear they will not receive a fair trial.” (Citations omitted.) Real State Golden Investments Inc. v. Larrain, __ So.3d __ (Fla. 3d DCA, No. 3D19-1369, 8/21/2019), 2019 WL 3938272.
Petition for habeas corpus granted in part because trial judge who found petitioner guilty of indirect criminal contempt should have disqualified herself. [Added 8/14/19]
In a child custody action, Judge issued an order to show cause to the father’s current wife (“Petitioner”) relating to a violation of Judge’s order directing the father to keep information about the case off of social media. Petitioner was a non-party to the action and had not been served with the order. Ultimately Judge found Petitioner guilty of indirect criminal contempt and sentenced her to 5 months in county jail. Petitioner filed for a writ of certiorari, which the appellate court treated as a petition for writ of habeas corpus.
The Second DCA granted the petition and ordered Petitioner released. Among the reasons why the trial court erred was the fact that Judge “should have disqualified herself because the contempt conduct involved disrespect and criticism of the judge. [Fla.R.Crim.P.] 3.840(e) provides that a trial judge must disqualify herself if the charged contempt ‘involves disrespect to or criticism of’ the judge. ‘[T]he purpose of the rule is to assure that a person cited for a contempt of court which involved a criticism of a judge, would not be tried on the contempt charge before the judge who was the subject of the criticism.’” In re: Weiner, __ So.3d __ (Fla. 2d DCA, No. 2D19-1413, 8/7/2019), 2019 WL 3673282.
Motion to disqualify trial judge in tobacco case should have been granted where movants alleged that judge had “recent and extensive involvement” in similar cases against movants or related parties. [Added 5/29/19]
Tobacco Defendants in an Engle progeny case filed a motion to disqualify Trial Judge. Judge denied the motion. Defendants petitioned for a writ of prohibition. Noting that the motion to disqualify was legally sufficient, the First DCA granted the petition.
Defendants alleged facts that would place a reasonably prudent person in fear of not getting a fair and impartial trial. Among other things, Defendants alleged: in the 8 years before his 2017 appointment to the bench, Judge appeared as counsel of record for plaintiffs in 19 cases where Defendants were being sued; Judge was trial counsel in 5 of those cases, including one in which , the jury returned a $17 million verdict, including $11 million in punitive damages; in another of the cases, Judge was co-counsel with a firm representing the plaintiff in the instant case; and Judge deposed corporate representatives of Defendants or their predecessors in interest for use in Engle progeny trials, which raised the possibility that the jury in the instant case could hear from Judge as both presiding judge and an examining lawyer.
The appeals court observed that the fact alleged, which must be taken as true in reviewing the denied of the motion for disqualification, “are legally sufficient to create a well-founded fear that [Defendants] would not receive a fair and impartial trial.” R.J. Reynolds Tobacco Co. v. Cuddihee, __ So.3d __ (Fla. 1st DCA, No. 1D19-0385, 5/6/2019), 2019 WL 1986206.
Trial court’s statement that allegations in judicial motion to disqualify were baseless went beyond what is permitted under Fla.R.Jud.Admin. 2.330(f). [Added 4/2/19]
Petitioner filed a motion to disqualify the trial judge, which the judge denied. Petitioner then sought a writ of prohibition. The Fifth DCA granted the petition and quashed the order denying disqualification. The appellate court found that the facts alleged in the motion would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Further, the Fifth DCA found “that the trial court’s statement that the allegations in the motion were factually baseless went beyond a determination of the legal sufficiency of the motion, contrary to the procedure set forth in Florida Rule of Judicial Administration 2.330(f).” Poirier v. Poirier, __ So.3d __ (Fla. 5th DCA, No. 5D19-394, 3/15/2019), 2019 WL 1212787.
Judge disqualified in 12 tobacco cases after disclosing ex parte communication with plaintiff’s counsel in another tobacco case about common “hot button” issue. [Added 2/21/19]
In an Engle progeny tobacco case referred to as the “Calloway” case, the trial judge (“Judge”) disclosed on the record to the parties (see Florida Code of Judicial Conduct Canon 3E(1)) that he has known one of the Calloway plaintiffs’ counsel (Hammer) in for 30 years. Judge further stated that he spoke to Hammer in the past week about a case that Hammer had in front of another judge, including that judge’s “thought concerning consolidations.” The issue of consolidations in Engle progeny cases is somewhat of a “hot button” topic.
Based on Judge’s disclosure, defendants moved to disqualify Judge from the Calloway case. Judge denied the motion, and the defendants petitioned for a writ of prohibition. The following day they moved to disqualify Judge in 15 other Engle progeny cases on the same grounds alleged in the Calloway case. Judge promptly denied the motions in 12 of the cases. Hammer was not the attorney of record in those cases.
In Calloway the Fourth DCA issued an order to show cause why disqualification should not be granted. While that matter was pending, Judge disqualified himself “of [his] own initiative.” He then granted the disqualification motions in the 3 remaining cases.
Defendants petitioned for a writ of prohibition to prevent Judge from presiding over the 12 cases in which he had denied disqualification motions. In addition to the disclosure in Calloway, defendants argued that Judge “has demonstrated bias by entering a sua sponte order of disqualification in the Calloway case at a time during which the trial court did not have jurisdiction to enter such an order, by handpicking the successor judge for that case, and by pushing the Calloway case to trial within three days after the entry of the disqualification order.”
After issuing a show cause order and considering the responses, the Fourth DCA granted the petition and ordered Judge disqualified in the 12 cases at issue.
Canon 3B(7) prohibits many ex parte communications by a judge, including communications such as the one that occurred in the Calloway case. The appeals court noted, however, that an ex parte communication by a judge “is not, per se, a ground for disqualification as a matter of law.” (Citation omitted.) Rather, “in the context of ex parte communications, the motion to disqualify must demonstrate prejudice by establishing that the impartiality of the trial judge is not ‘beyond question.’”
In reaching its decision, the Fourth DCA was “guided by the principle” that the trial judge’s decision must be overturned when the appellate court is unable to determine if that decision was harmless because it was based on communications outside the record. Here, Judge’s did not provide sufficient details regarding his ex parte communication with Hammer to permit the appeals court to “conclude there was no prejudice because ‘[t]he impartiality of the trial judge [is] beyond question.’” (Citation omitted.) It was not known what information was discussed by Hammer about consolidation, “which appears to be a hot button issue in Engle progeny cases.”
The court went on to express its concern about the actions taken by Judge after the ex parte communication, stating: “We are very troubled by the fact that in the Calloway disqualification order, the trial judge ignored our stay order and directed that the Calloway case be transferred to another judge, specifically named, and that the scheduled trial was to begin on a specific date.”
Accordingly, under the “unique facts” of the case, the appellate court overturned Judge’s order denying disqualification in the 12 cases because Judge “permitted an ex parte communication on an important topic involving Engle progeny cases and we cannot determine that [Judge’s] actions were harmless. . . . We further conclude that the unique facts of this case demonstrate that ‘the appearance of impropriety so permeated the proceeding[s] below as to justify a suspicion of unfairness, mandating reversal.’” (Citations omitted.) R.J. Reynolds Tobacco Co. v. Alonso, __ So.3d __ (Fla. 4th DCA, No. 4D18-2444, 2/6/2019), 2019 WL 459173.
Second DCA orders county court judge disqualified based on petitioners’ “well-founded fear that they would not receive a fair proceeding.” [Added 12/14/18]
Petitioners were represented by Lawyer on their civil traffic infractions in county court. A hearing officer approach Lawyer and told him that the officer “was talked to” and would no longer be as lenient as he had been in the past. Seeking more information, Lawyer made a public records request for all emails relating to traffic court from a certain county Judge. Upon receiving and reviewing the emails, Lawyer thought there has been “inappropriate conduct” on the part of the clerk’s office and Judge with regard to the handling of traffic matters.
Shortly after he got the emails, Judge questioned Lawyer in open court about why he had requested the emails. Subsequent to that incident, all of the cases of Lawyer’s clients were transferred from their original docket to a “special docket” assigned to Judge.
Lawyer moved to disqualify Judge from presiding over the cases. Judge denied the motion as legally insufficient. Petitioners sought a writ of prohibition, which the circuit court denied on the ground that the “allegations are those of adverse judicial rulings, and pure speculation as to the reasons why the county judge met with the hearing officer, the content of that meeting, or why the docket was transferred.” Petitioners then petitioned the Second DCA for a writ of certiorari.
The Second DCA granted the petition, ruling that Judge should be disqualified. While “the allegations suggesting the county judge's tough stance on traffic defendants and noting his prior adverse rulings may not have been sufficient in themselves to show bias,” Petitioners alleged more. They “also alleged that the county judge instructed the hearing officer to be less lenient on traffic defendants and that the county judge believed that drivers in the county were aggressive. Moreover, the petitioners alleged that the county judge inquired why counsel requested the judge’s emails and that soon thereafter, [Petitioners’l cases were removed from their original docket and transferred to the docket of [Judge]. These allegations combined were sufficient to give [Petitioners] an objective fear that they would not receive a fair trial before [Judge] in their traffic cases.” Pena v. State, __ So.3d __ (Fla. 2d DCA, No. 2D17-4465, 11/9/2018), 2018 WL 5851361.
Resolving conflict between DCAs, Supreme Court rules that allegation that trial judge is Facebook “friend” of lawyer in case is not sufficient of itself to constitute ground for judge’s disqualification. [Added 11/7/18]
Law Firm sued a former client (USAA) for breach of contract and fraud. Law Firm accused one of USAA’s executives of witness tampering, and suggested that he is a potential witness and potential defendant. USAA hired an ex-judge (Lawyer) to represent the executive. Law Firm moved to disqualify the trial judge (Judge) on the ground that Lawyer was a “friend” on Judge’s personal Facebook page. Law Firm’s client claimed to have a well-founded fear of not getting a fair trial. Judge denied the disqualification motion.
The Third DCA denied Law Firm’s petition for writ of prohibition, agreeing with the position expressed by the Fifth DCA in Chace v. Loisel, 170 So.3d 802 (Fla. 5th DCA 2014), and concluding that a Facebook “friendship,” standing alone, was not a sufficient ground for the judge’s disqualification. Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, 229 So.3d 408 (Fla. 3d DCA 2017). The Third DCA acknowledged conflict with Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012).
By a 4-3 vote the Florida Supreme Court approved the Third DCA’s decision and disapproved Domville.
The relevant standard for judicial disqualification is whether the facts alleged would put a reasonably prudent person in fear of not receiving a fair and impartial trial. Under Florida law, “an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.” Mere friendship does not, without more, signify the type of “inherently close or intimate relationship” with a judge that would warrant disqualification.
After discussing Facebook and Facebook “friendship,” the Court stated: “A Facebook ‘friend’ may or may not be a ‘friend’ in the traditional sense of the word. But Facebook ‘friendship’ is not – as a categorical matter – the functional equivalent of traditional ‘friendship.’ The establishment of a Facebook ‘friendship’ does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship.’ Today it is commonly understood that Facebook ‘friendship’ exists on an even broader spectrum than traditional ‘friendship.’ Traditional ‘friendship’varies in degree from greatest intimacy to casual acquaintance; Facebook ‘friendship’ varies in degree from greatest intimacy to ‘virtual stranger’ or ‘complete stranger.’” Consequently, the Court concluded: “[T]he mere existence of a Facebook ‘friendship’ between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.”
The Court went on to point out that its conclusion was in accord with the majority position on the issue. The Florida Supreme Court Judicial Advisory Ethics Committee has previously issued advisory opinions that take the minority position. See, e.g., JEAC Opinion 2009-20. The Court commented that the Committee’s “position simply cannot be reconciled with this Court’s longstanding treatment of disqualification motions based on mere allegations of traditional ‘friendship.’”
Three justices dissented. Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla., No. SC17-1848, 11/15/2018), 2018 WL 5994243.
Motion for writ of prohibition dismissed as moot because judge whose disqualification was sought left bench before petition was ruled on. [Added 6/28/18]
A worker’s compensation claimant and her lawyer (Petitioners) moved to disqualify a Judge of Compensation Claims (JCC) in 3 different cases. The JCC denied one motion as legally insufficient. Petitioners sought a writ of prohibition from the First DCA. Before the appeals court could rule on the petition, the JCC left the bench. The appeals court stayed the proceedings below. When that happened, Petitioners moved for clarification regarding the stay. Petitioners argued that the First DCA should “reverse all of the prior JCC’s interlocutory orders upon which they base their claims of bias.”
The First DCA disagreed and dismissed the petition for writ of prohibition as moot. “The fact that the prior JCC will no longer preside over Petitioners’ cases renders a petition to disqualify him unnecessary.” Further, “[b]ecause a writ of prohibition is preventative, not corrective, it should not be used as a substitute for an appeal.” Chaviano v. Greater Miami Caterers, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D17-3029, 6/22/2018), 2018 WL 3079346.
Third DCA declines to disqualify judge from multiple cases in which parties are represented law firm with which judge’s election opponent practices. [Added 6/11/18]
Incumbent Judge presides over cases in the civil division. A lawyer (“Attorney Candidate”) has filed as the sole opponent of Judge in the upcoming election. The firm with which Attorney Candidate practices (“Law Firm”) represents clients in a number of cases pending before Incumbent Judge. Attorney Candidate is not counsel of record for any of these parties. Law Firm filed motions to disqualify Incumbent Judge based on the allegation that, due to the fact that Attorney Candidate is in the firm that represents them in cases before Incumbent Judge, the movants are concerned that the facts resulted in “inherent bias or prejudice” on the part of Incumbent Judge against both the movants and Law Firm. Incumbent Judge denied the motions. Movants then petitioned the Third DCA for a writ of prohibition to disqualify the judge.
The Third DCA denied the petition. The court noted that this was “a case of first impression in Florida insofar as the candidacy of the Attorney Candidate is sought to be imputed by the movants to all members of the Law Firm as a basis for disqualification of the Incumbent Judge.” While some authorities address the issue of disqualification of a judge when the judge’s election opponent personally represents a party in a case before the judge, nothing in the record indicates that Attorney Candidate personally represents any of the movants. Florida law presumes that a judge will be impartial, and no cases have “imputed the candidacy of a member of a law firm to every member of that firm as a legally sufficient basis to rebut and overcome the presumption of impartiality (and requiring disqualification of the incumbent judicial opponent on that basis).”
Further, after an extensive review of Judicial Advisory Ethics Opinions, the court concluded that the opinions “establish a broad principle of imputation applicable to lawyers in a law firm in which a particular lawyer has established a substantial personal or campaign-related tie to an incumbent judge. We find much less authority in the opinions regarding the opposite side of the electoral campaign – the incumbent judge’s obligations when members of the opposing candidate’s firm (but not the individual opposing candidate) represent parties in cases pending before the judge.”
Ultimately the court rejected the “per se rule proposed by the petitioners,” noting that “its presumption of ‘inherent bias or prejudice,’ could disincline eligible attorneys in large firms to enter contested judicial elections against an incumbent.” Sands Pointe Ocean Beach Resort Condominium Ass’n, Inc. v. Aelion, __ So.3d __ (Fla. 3d DCA, No. 3D18-755, 6/6/2018), 2018 WL 2708724.
Judge who recused himself after trial but before sentencing did not commit reversible error by refusing to disclose details underlying recusal. [Added 3/30/18]
After Defendant was convicted, the trial judge announced that he was recusing himself. The prosecution and defense filed a joint motion requesting that the judge “provide specific findings to explain the recusal.” Although the judge denied the request for specific findings, he noted that a conflict of interest had arisen after trial but that it was not relevant to any post-trial motions. The new judge sentenced Defendant to life.
Defendant appealed, contending – without citing to authority – that the original judge “committed reversible error by failing to articulate specific reasons for his recusal.” The First DCA disagreed and affirmed. Fla.R.Jud.Admin 2.330 “provides that “[n]othing in this rule limits the judge’s ability to enter an order of disqualification on the judge’s own initiative.” And although there may be reasons a judge would explain his or her recusal, nothing in the rule compels it.” Williams v. State, __ So.3d __ (Fla. 1st DCA, No. 1D17-0149), 2018 WL 1415494.
Court did not err in denying motion to disqualify judge in contentious family law case. [Added 3/27/18]
Erlinger (wife) and Federico (husband) engaged in contentious, protracted divorce litigation. Erlinger was found to be in non-compliance with the court’s child timesharing plan. Federico moved to hold Erlinger in contempt, and she responded with a motion to modify the temporary parenting plan. The court granted Federico’s motion for contempt and denied Erlinger’s motion to modify. After the hearing Erlinger moved to disqualify the trial judge for comments he made during the hearing. The judge denied the motion, and the First DCA denied Erlinger’s petition for writ of certiorari without elaboration.
Ultimately an amended final judgment of dissolution was entered, and the court also imposed sanctions against Erlinger “for repeatedly and vindictively withholding timesharing throughout the course of the proceedings in violation of the court-ordered timesharing plan.” Erlinger appealed on various grounds. The First DCA affirmed, writing to address only her allegation that the court erred in not granting her motion to disqualify.
Erlinger asserted that the following comments and conduct by the judge demonstrated grounds for disqualification: “(1) interrupting Erlinger’s cross-examination of Federico and making several comments, including ‘you just do what you want;’ (2) loudly sighing and shaking his head during Erlinger’s testimony; and (3) becoming an active participant in the proceedings by interrupting opposing counsel’s cross-examination of Erlinger ‘to question and comment openly’ on her testimony.” Additionally, Erlinger contended that the court’s “highly questionable rulings” showed bias.
The First DCA rejected all of these arguments. The “‘you just do what you want” statement was a permissible characterization of the judges’ observation that Erlinger repeatedly defied court orders. The complaints about “sighing and shaking” of the head were not grounds for disqualification. “Erlinger’s allegations regarding the judge’s non-verbal expressions represent only a subjective fear and do not provide a well-founded fear of prejudice.” Erlinger failed to specifically identify the conduct in question. Finally, it has long been held that adverse rulings are not grounds for a judge’s disqualification. Erlinger v. Federico, __ So.3d __ (Fla. 1st DCA, No. 1D17-248, 3/15/2018), 2018 WL 1342065.
Improper service not sufficient reason to deny motion to disqualify judge. [Added 11/8/17] -- Baker v. State, __ So.3d __ (Fla. 1st DCA, No. 1D17-1702, 10/31/2017), 2017 WL 4891645.
Trial judge who is Facebook “friends” with lawyer representing person who is potential witness and potential party not disqualified. [Added 9/8/17] -- Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla. 3d DCA, No. 3D17-1421, 8/23/2017), 2017 WL 3611661. NOTE: See Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla., No. SC17-1848, 11/15/2018), 2018 WL 5994243.
Judge of Compensation Claims disqualified because, in another case, judge stated that claimant’s lawyer was not credible and disqualified himself. [Added 8/11/17]
Claimant in a workers’ compensation case filed a motion to disqualify the Judge of Compensation Claims (“JCC”). Claimant alleged that he believed the JCC was prejudiced against him because he was prejudiced against Claimant’s lawyer. In another case, the JCC had found that representations made by the lawyer in a motion were not credible. In that case, the JCC granted a motion to disqualify him. In the instant case, however, the JCC denied the motion as legally insufficient.
The First DCA granted Claimant’s petition for a writ of prohibition and ordered the JCC disqualified. Although the statement in question was aimed at Claimant’s lawyer, rather than at Claimant, “as an indication of a bias which may create a party’s fear of not receiving an impartial hearing, there is no appreciable difference.” Lowman v. Racetrac Petroleum, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D17-1385, 6/27/2017), 2017 WL 2970703.
Judge disqualified from presiding over contempt proceeding that arose from lawyer’s alleged disrespect to judge in open court. [Added 7/28/17] -- Rosenwater v. Deutsche Bank National Trust Co., __ So.3d __ (Fla. 4th DCA, No. 4D16-4015, 6/21/2017), 2017 WL 2664689.
Judge’s disqualification not warranted when criminal defendant complained about judge’s handling of trial scheduling and alleged “favoritism” toward State. [Added 6/8/17] -- Fetzner v. State, __ So.3d __ (Fla. 4th DCA, No. 4D15-2572, 5/3/2017), 2017 WL 1718851.
Judge disqualified due to judge’s stated policy of requiring State to file information within 21 days of defendant’s arrest to avoid sua sponte release of defendant or reduction of bond. [Added 6/1/17] -- State v. Dixon, __ So.3d __ (Fla. 3d DCA, No. 3D17-281, 3D-17-158, 3D-17-159, 4/26/2017), 2017 WL 1494001.
Motion to disqualify senior judge timely despite being made more than 10 days after judge’s comments, wheree movant reasonably believed that judge would not remain on case. [Added 4/11/17] -- State v. Gresham, __ So.3d __ (Fla. 5th DCA, No. 5D17-0665, 3/31/2017), 2017 WL 1202615.
Although judge’s overhead comment about lawyer’s verbosity did not warrant disqualification, judge is disqualified due to response filed on judge’s behalf. [Added 3/30/2017] -- Consulate Health Care v. Ho, __ So.3d __ (Fla. 1st DCA, No. 1D16-3808, 2/24/2017).
Judge should have been disqualified for allegedly engaging in ex parte communications with party before entering final judgment that was “nearly identical” to party’s proposed judgment. [Added 1/4/17] -- Isan v. Isan, __ So.3d __ (Fla. 5th DCA, No. 5D16-3867, 12/6/2016), 2016 WL 7174330.
Judge not disqualified despite making comment that party believed reflected “negative and unfounded stereotypes” of persons of party’s ethnic background. [Added 12/21/16] -- Pugliese v. Deluca, __ So.3d __ (Fla. 4th DCA, No. 4D16-3959, 12/21/2016), 2016 WL _______.
Although motion for disqualification was legally sufficient, judge not disqualified because movant failed to timely act to prevent judge from taking further action pending appellate review. [Added 12/20/16] -- Jackson v. Leon County Elections Canvassing Board, __ So.3d __ (Fla. 1st DCA, No. 1D16-5205, 11/23/2016), 2016 WL 6901444.
Criminal defendant’s motion to disqualify trial judge should have been granted as legally sufficient where defendant alleged fear of bias due to judge’s apparent policy regarding harsher sentences on persons unable to pay restitution. [Added 9/28/16] -- Dunlevy v. State, __ So.3d __ (Fla. 4th DCA, Nos. 4D13-831, 4D14-2153, 9/21/2106) 2016 WL 5118337.
Judge is not disqualified from case, despite having compared party’s procedures to those of the “Taliban” in related suit. [Added 7/5/16] -- Lawnwood Medical Center, Inc. v. Seeger, __ So.3d __ (Fla. 4th DCA, No. 4D16-885, 6/15/2016), 2016 WL 3268545.
Judge who previously represented criminal defendant and thus acquired confidential information, coupled with judge’s prior representation of police department to which defendant is adverse, would have required disqualification if motion was timely filed. [Added 1/15/16] -- State v. Oliu, __ So.3d __ (Fla. 3d DCA, No. 3D15-2426, 1/6/2016), 2016 WL 63662.
Judge’s comments in written denial of motion to disqualify him were comments on what faculty transpired and not refutation of bias or prejudice, and thus were permissible. [Added 1/4/16] -- Pilkington v. Pilkington, __ So.3d __ (Fla. 5th DCA, No. 5D15-3829, 12/31/2015), 2015 WL _______.
Judge disqualified from case in which lawyer on judge’s on-going campaign committee is representing party. [Added 11/28/15] -- Rivera v. Bosque, __ So.3d __ (Fla. 5th DCA, No. 5D15-3755, 1/29/2016) (on rehearing), 2016 WL ______.
Judge was disqualified for commenting on merits of movant’s allegations in open court, despite entering written order that simply denied motion as legally insufficient without comment. [Added 11/21/15] -- Greenwood v. State, __ So.3d __ (Fla. 2d DCA, No. 2D15-3553, 10/14/2015), 2015 WL 5966270.
Motion to disqualify judge does not require sworn affidavits by party having personal knowledge of facts alleged. [Added 10/26/15] -- D.W.Q. v. A.B., __ So.3d __ (Fla. 5th DCA, No. 5D15-2882, 10/7/2015), 2015 WL 5883372.
Judge’s comments reflecting personal knowledge about storm damage affecting local area were not grounds for disqualification. [Added 8/12/15] -- Forehand v. Walton County, __ So.3d __ (Fla. 1st DCA, No. 1D15-2842, 8/7/2015), 2015 WL 4709188.
Judge’s hostility toward lawyer arising from lawyer’s opposition to judge’s appointment to federal bench warrants disqualification of judge in post-trial proceedings. [Added 7/19/15] -- Perrotto v. R.J. Reynolds Tobacco Co., __ So.3d __ (Fla. 4th DCA, No. 4D14-4943, 7/15/2015), 2015 WL 4269628.
Judge of Compensation Claims erred in denying motion to disqualify him due to “improper allegations” against movant’s lawyer in unrelated case. [Added 6/18/15] -- Kline v. JRD Management Corp., __ So.3d __ (Fla. 1st DCA, No. 1D15-0562, 6/2/2015), 2015 WL 3464110.
Judge disqualified for allegedly refusing to allow former husband to cross-examine former wife during hearing on emergency motion to temporarily suspend husband’s child custody. [Added 5/19/15] -- Wyckoff v. Cavanaugh, __ So.3d __ (Fla. 1st DCA, No. 1D15-1646, 5/15/2015), 2015 WL 2260662.
Judge who made “acerbic comments” and showed “overall hostility” to defendants and their counsel is disqualified. [Added 5/12/15] -- Partin v. Magalhaes, __ So.3d __ (Fla. 4th DCA, No. 4D14-4861, 5/6/2015), 2015 WL 2089081.
Judge’s comment on credibility of party’s expert witness coupled with adoption of other party’s proposed judgment do not provide basis for judge’s disqualification. [Added 4/2/15] -- Clark v. Clark, __ So.3d __ (Fla. 1st DCA, No. 1D14-5949, 3/25//2015), 2015 WL 1334079.
Judge’s denial of motion to disqualify him is upheld, where motion appeared to be based on adverse ruling. [Added 2/20/15] -- Kazran v. Buchanan, __ So.3d __ (Fla. 2d DCA, No. 2D15-13 2/20/2015).
Judge who receives no alimony or support from judge’s former spouse is not disqualified from cases involving former partner of Judge's former spouse who still rents space from Judge's former spouse. [Added 2/12/15] -- Judicial Ethics Advisory Committee Opinion 2015-01.
Judge’s apparent attempts at "wit or erudition" fall flat, leading to his disqualification. [Added 12/23/14] -- Great American Ins. Co. of New York v. 2000 Island Boulevard Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA,No. 3D1-2625, 12/17/2014).
Judge’s comments about city’s police officers ignoring subpoenas are not sufficient basis on which to disqualify judge from cases involving that police department. [Added 12/23/14] -- State v. Banner, __ So.3d __ (Fla. 5th DCA, No. 5D-3694, 12/15/2014).
Judge disqualified from post-dissolution proceeding after not allowing party to present argument or additional evidence prior to ruling on opponent’s motion for temporary support. [Added 11/19/14] -- Castillo v. Castillo, __ So.3d __ (Fla. 4th DCA, 4D14-2522, 11/19/2014).
Party who moved for judge’s disqualification not entitled to take judge’s deposition in order to provide support for motion. [Added 10/21/14] -- Keitel v. Agostino, ___ So.3d __ (Fla. 4th DCA, No. 4D14-2368, 10/8/2014).
Strict compliance with service of process rules required for motions to disqualify judges. [Added 8/13/14] -- Leila Corp. of St. Pete v. Ossi, __ So.3d __ (Fla. 2d DCA, No. 2D14-1960, 8/8/2014).
Judicial Ethics Advisory Committee affirms prior position regarding disclosure and disqualification relating to lawyers on s campaign committee. [Added 7/31/14] -- Judicial Ethics Advisory Opinion 2014-09.
Motion to disqualify judge did not trigger time limits for ruling on motion under Fla.R.Jud.Admin. 2.330(j) because it was filed before s jurisdiction had been invoked. [Added 7/1/14] -- Nilio v. State, __ So.3d __ (Fla. 1st DCA, No. 1D14-0451, 6/25/2014).
Judge who stated during plea hearing that he wished he could give defendant the death penalty is disqualified from case and conviction is reversed. [Added 5/4/14] -- Carter v. State, __ So.3d __ (Fla. 4 th DCA, No. 4D11-4979, 4/30/2014).
Pending motion to disqualify the judge must be ruled on before the judge rules on anything else Petitioner filed and served a motion to disqualify the trial judge. [Added 4/30/14] -- Dortly v. Avalon Healthcare Center, __ So.3d __ (Fla. 1st DCA, No. 1D13-4485, 4/9/2014).
Judge may not preside over case in which judge previously provided mediation services while in private practice. [Added 2/5/14] -- Judicial Ethics Advisory Opinion 2014-02.
Judge who sent ex parte Facebook “friend” request to divorce litigant should have granted litigant’s motion for disqualification. [Added 2/3/14] -- Chace v. Loisel, __ So.3d __ (Fla. 5th DCA, No. 5D13-4449, 1/24/2014). NOTE: See Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla., No. SC17-1848, 11/15/2018), 2018 WL 5994243.
Judge disqualified from dissolution case because one spouses’ counsel represented judge in judge’s own divorce. [Added 11/21/13] -- Ballard v. Campbell, __ So.3d __ (Fla. 4th DCA, No. 4D13-2098, 11/20/2013).
Judge disqualified for conducting independent, ex parte investigation in guardianship matter. [Added 11/10/13] -- In re: Guardianship of O.A.M., __ So.3d __ (Fla. 3d DCA, No. 3D13-2250, 11/6/2013).
Second DCA strikes “scandalous” comments from judge’s blanket order disqualifying herself in all cases involving certain lawyer. [Added 11/6/13] -- Holt v. Sheehan, __ So.3d __ (Fla. 2d DCA, No. 2D12-4254, 10/11/2013).
Judge disqualified for adopting “recommendations” from one party without affording other party chance to cross-examine witness or present evidence. [Added 10/29/13] -- S.L. Wade v. D.T. Wade, __ So.3d __ (Fla. 3d DCA, No. 3D13-2354, 10/23/2013).
Second DCA reverses judgment in medical malpractice case because trial judge erred in not disqualifying himself or declaring a mistrial. [Added 10/25/13] -- M.B. v. S.P., __ So.3d __ (Fla. 2d DCA, No. 2D12-3136, 10/18/2013).
Judge disqualified despite legally insufficient motion due to comments taking issue with facts alleged in motion. [Added 10/10/13] -- McPherson v. McPherson, __ So.3d __ (Fla. 4th DCA, 4D13-3170, 10/9/2013).
Court’s untimely denial of motion to disqualify judge means that motion is deemed granted and judge is disqualified. [Added 10/10/13] -- Belgrave-Simmonds v. Belgrave, __ So.3d __ (Fla. 4th DCA, 4D13-1421, 10/9/2013).
Judge erred in denying motion to disqualify her after inviting it to be filed and indicating it would be granted. [Added 8/12/13] -- ManorCare Health Services, Inc. v. Gipson, __ So.3d __ (Fla. 4th DCA, No. 4D13-605, 8/7/2013).
Judge may not use office in building owned by the judge in which judge previously practiced law with family members who still practice there. [Added 6/6/13] -- Judicial Ethics Advisory Opinion 2013-13.
Judge should have been disqualified after entering adverse ruling without allowing defendant to present evidence or argument on important issue. [Added 4/16/13] -- Keating v. State, __ So.3d __ (Fla. Fourth DCA, No. 4D13-30, 4/10/2013).
Judge’s disqualification required where judge’s acts and personal comments about litigant were enough to demonstrate bias to a reasonable person. [Added 3/31/13] -- Martinez v. Cramer, __ So.3d __ (Fla. 4th DCA, No. 4D13-368, 4/3/2013).
Strictly applying 30-day time limit for ruling on judicial motions to disqualify, First DCA quashes order denying motion and orders case reassigned. [Added 3/26/13] -- Hilliard v. State, __ So.3d __ (Fla. 1st DCA, No. 1D13-0217, 3/18/2013).
Judge who stated that criminal defendant committed perjury is disqualified from presiding over defendant’s sentencing. [Added 3/10/13] Louissant v. State, __ So.3d __ (Fla. 4th DCA, No. 4D11-1553, 3/6/2013).
Judge who a year ago consulted but did not hire lawyer from large law firm is not disqualified from cases involving that lawyer or firm. [Added 2/7/13] -- Judicial Ethics Advisory Opinion 2013-02.
Judicial Ethics Advisory Committee addresses when judicial appointee may sell law practice, including goodwill, and collect payments over time. [Added 2/5/13] -- Judicial Ethics Advisory Opinion 2013-01.
Fourth DCA certifies question of whether criminal court judge’s acceptance of prosecutor as Facebook friend requires judge’s disqualification. [Added 1/18/13]
In a prior opinion in this case the Fourth DCA ruled that the judge in a criminal case was disqualified where the judge had accepted the prosecutor as a Facebook “friend.” The court reasoned that “a judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality” and, as a result, concluded that the judge should have been disqualified because the defendant “alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” (See Domville v. State, 37 Fla.L.Weekly D2126 (Fla. 4th DCA, No. 4D12-556, 9/5/2012).)
In an opinion denying motions for rehearing and clarification, the appeals court certified to the Supreme Court (pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v)) the following question as one of great public importance: “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook ‘friend,’ would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”
One judge wrote a concurring opinion in which he stated that “[j]udges do not have the unfettered social freedom of teenagers” and that maintenance of a judge’s “appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance.” Domville v. State, __ So.3d __ (Fla. 4th DCA, No. 4D12-556, 1/16/2013) (on motions for rehearing and clarification).
Judge who suggested that he would grant motion to disqualify him if state filed it, but then denied motion, is disqualified per Third DCA. [Added 1/18/13] -- State v. Borrego, __ So.3d __ (Fla. 3d DCA, No. 3D12-2988, 1/16/2013).
Judicial Ethics Advisory Committee addresses issues of disclosure and recusal in cases where judge’s close friend is official of bank litigant. [Added 1/2/13] -- Judicial Ethics Advisory Opinion 2012-37.
30-day time limit for ruling on judicial motion to disqualify does not apply if judge is not served with motion, per Florida Supreme Court. [Added 11/20/12] -- Braddy v. State, __ So.3d ___ (Fla., No. SC07-2174, 11/15/2012).
Judicial Ethics Advisory Committee discusses when judge's disqualification may be required because a stepniece is a lawyer in Public Defender's Office. [Added 10/30/12] -- Judicial Ethics Advisory Opinion 2012-32.
Criminal court judge must disclose to parties that judge's spouse is "sworn legal counsel" in sheriff's office when case involves sheriff's office. [Added 10/30/12] -- Judicial Ethics Advisory Opinion 2012-33.
Criminal defendant’s allegation that trial judge is Facebook “friend” of prosecutor is grounds for judge’s disqualification, per Fourth DCA. [Added 9/6/12] -- Domville v. State, __ So.3d ___ (Fla. 4th DCA, No. 4D12-556, 9/5/2012).
Disqualification of judge required where judge made “inflammatory” statements referencing notorious Nazi war criminal. [Added 9/6/12] -- Philip Morris USA, Inc. v. Brown, __ So.3d ___ (Fla. 1st DCA, No. 1D12-3090, 9/5/2012).
Judge’s actions to control attorney behavior in courtroom are not grounds for disqualification, per Third DCA. [Added 6/29/12] -- Bert v. Bermudez, __ So.3d ___, 37 Fla.L.Weekly D1465 (Fla. 3d DCA, No. 3D12-911, 6/20/2012), 2012 WL 2327734.
Criminal court judge’s membership in organization dedicated to assisting domestic violence victims is not a basis for disqualification, suggests Fourth DCA. [Added 6/27/12] -- Holley v. State, __ So.3d ___, 37 Fla.L.Weekly D1440 (Fla. 4th DCA, No. 4D09-4066, 6/20/2012), 2012 WL 2327741.
Judge who is tenant/defendant in residential condominium foreclosure case is not obligated to recuse from all residential foreclosure cases. [Added 4/18/12] -- Judicial Ethics Advisory Opinion 2012-07.
Disclosure but not recusal is required where judge 7 years earlier represented party against lawyer currently appearing in judge’s court. [Added 4/12/12] -- Judicial Ethics Advisory Opinion 2012-08.
County judge whose child is lawyer in State Attorney's Office is not disqualified from hearing criminal cases but should disclose relationship to parties in criminal cases. [Added 1/31/12] -- Judicial Ethics Advisory Opinion 2012-02.
Judge disqualified from case may not perform anything other than "ministerial" acts in case after disqualification. [Added/ 1/17/12] -- Ross v. Ross, 77 So.3d 238 (Fla. 4th DCA 2012).
First DCA "disfavors" and denies "blanket" request to disqualify judge from presiding over 16 other cases involving same lawyers who had judge disqualified in one case. [Added 1/10/12] -- R.M.C. v. D.C., 77 So.3d 234 (Fla. 1st DCA 2012).
Judge may not preside over felony arraignments in county where judge's spouse supervises State Attorney's Office. [Added 1/3/12] -- Judicial Ethics Advisory Opinion 2011-21.
Motion to disqualify judge for denying continuance and “demeanor” with counsel properly denied as legally insufficient. [Added 12/20/11] -- Ramos v. State, 75 So.3d 1277 (Fla. 4th DCA 2011).
Disclosure, but not recusal, is required where lawyer appearing before judge is married to another lawyer who represents judge in unrelated civil matter. [Added 11/13/11] -- Judicial Ethics Advisory Opinion 2011-17.
Judge not disqualified from presiding over criminal defendant's trial just because he presided over related civil case. [Added 9/23/11] -- Santisteban v. State, 72 So.3d 187 (Fla. 4th DCA 2011).
Motion to disqualify trial judge is untimely when delayed until after final judgment. [Added 7/11/11] -- DeTournay v. City of Coral Gables, 65 So.3d 1103 (Fla. 3d DCA 2011).
Judge disqualified from presiding over contempt proceeding but not from underlying divorce case. [Added 5/28/11] -- Zanghi v. State, 61 So.3d 1263 (Fla. 4th DCA 2011).
Senior judge who holds several residential mortgages on properties not ethically prohibited from presiding over mortgage foreclosure cases. [Added 2/17/11] -- Judicial Ethics Advisory Opinion 2011-02.
First DCA rules that judge should be disqualified for comment appearing to favor one party. [Added 1/26/11] -- Tallahassee Memorial Healthcare, Inc. v. Alexander, 51 So.3d 644 (Fla. 1st DCA 2011).
Judicial Ethics Advisory Committee discusses when judge may hear cases with defendants represented by Public Defender's Office where judge had worked. [Added 11/13/10] -- Judicial Ethics Advisory Opinion 2010-36.
Judge's ruling on motion to disqualify was timely despite being rendered 35 days after service. [Added 11/5/10] -- Hatfield v. State, 46 So.3d 654 (Fla. 2d DCA 2010).
Florida Supreme Court reaffirms that motions to disqualify judge filed pro se by represented criminal defendant are a nullity. [Added 10/3/10] -- Ault v. State, 53 So.3d 175 (Fla. 2010).
Judge disqualified from minor's delinquency proceedings due to statements made by judge in open court. [Added 9/17/10] -- R.V. v. State, 44 So.3d 180 (Fla. 4th DCA 2010).
Ex parte communications with judge for purely administrative, non-substantive matters do not warrant judge's disqualification. [Added 8/23/10] -- Nudel v. Flagstar Bank, FSB, 52 So.3d 692 (Fla. 4th DCA 2010).
Judicial Ethics Advisory Committee addresses questions of judge owning stock in company that underwrites bail bonds. [Added 8/4/10] -- Judicial Ethics Advisory Opinion 2010-25.
Trial judge's disqualification is warranted where judge observed party's conduct in court prior to filing of case. [Added 7/8/10] -- A.B. v. Dept. of Children and Family Services, 37 So.3d 394 (Fla. 3d DCA 2010).
Judge married to circuit's elected Public Defender may not preside over cases assigned to P.D.'s office, even if private contract attorneys actually handle the cases. [Added 5/4/10] -- Judicial Ethics Advisory Opinion 2010-09.
Judge in building partnership with county attorney disqualified from cases where county is represented by county attorney's staff, but not necessarily when outside counsel used. [Added 4/21/10] -- Judicial Ethics Advisory Opinion 2010-02.
Judge who received favorable loan rates from lender affiliated with one of the parties is disqualified from presiding over case. [Added 2/5/10] -- Mines v. Countrywide Home Loan, Inc., 31 So.3d 820 (Fla. 1st DCA 2010). NOTE: See also Canon 5D(5)(f) of the Florida Code of Judicial Conduct.
Judge did not err in entering final order after motion to disqualify him was filed, where order simply reduced to writing prior oral ruling. [Added 12/15/09] -- Fernwoods Condominium Association #2, Inc. v. Alonso, 26 So.3d 27 (Fla. 3d DCA 2009).
Trial judge's "decidedly negative commentary" about party sufficient to require judge's disqualification in marriage dissolution proceeding. [Added 10/28/09] -- Colarusso v. Colarusso, 20 So.3d 985 (Fla. 3d DCA 2009).
Lawyers' campaign contributions totaling $4650 do not require disqualification of recipient judge under Caperton v. A.T. Massey Coal Co. [Added 10/2/09] -- E.I. DuPont de Nemours and Co. v. Acqumar S.A., 24 So.3d 585 (Fla. 4th DCA 2009).
Judge who recused himself in one case due to personal relationship with parties also disqualified in separate case involving those parties. [Added 9/30/09] -- Catasus v. Tabone, 19 So.3d 427 (Fla. 3d DCA 2009).
Florida Supreme Court amends Florida Rules of Judicial Administration concerning judicial disqualification motions. [Added 7/15/08] -- In re: Amendments to the Florida Rules of Judicial Administration, 986 So.2d 560 (Fla. 2008).
Florida Supreme Court rules that circuit court's order on petition for writ of prohibition filed after motion to disqualify County court judge was denied is reviewable by certiorari rather than direct appeal. [Added 2/4/08] -- Sutton v. State, 975 So.2d 1073 (Fla. 2008).