Revocation of probation order reversed due to trial judge's improper ex parte communications with prosecutor and bailiff.  [Added 2/19/10]

    Defendant was charged with violating his probation.  At the hearing, after the prosecution rested its case Defendant's counsel requested a recess to discuss whether Defendant would testify.  "The transcript reflects that while in recess, the trial court engaged in conversation with the assistant state attorney and the bailiff, during which the trial court made statements regarding [Defendant]'s guilt."

    Defendant appealed.  The Second DCA reversed, "[b]ased on the State's concession of error and our review of the trial court's improper ex parte statements . . .  See Spencer v. State, 615 So.2d 688, 691 (Fla. 1993) (finding that ex parte communication between trial judge and assistant state attorney during sentencing phase of trial amounted to reversible error and noting that 'there is nothing 'more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant'" (quoting Rose v. State, 601 So. 2d 1181, 1183 (Fla. 1992)))."  Sanchez v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D08-5347, 2/17/2010).

Magistrate and judge may not communicate on merits of referred case without informing parties.  [Added 9/25/09]

    Judge asked the Florida Supreme Court's Judicial Ethics Advisory Committee for an opinion concerning whether Judge ethically may have certain discussions with a magistrate to whom Judge refers cases.  Judge stated that the magistrate regularly "wishes to discuss a point of law with [Judge] in pending cases."

    The Committee concluded that the  Florida Code of Judicial Conduct "not prohibit communication between circuit judges and magistrates that is required for scheduling, administrative purposes or emergencies and that does not deal with substantive matters or issues on the merits.  Notice to the parties is not necessary in the event of such coordination . . ."  However, [w]hile not ex parte, strictly speaking, communications between referring judges and magistrates about active cases do qualify as 'communications made to the judge outside the presence of the parties concerning a pending or impending proceeding,'  Canon 3B(7), and so fall within the canon’s purview.  Such communications should not, at any time before the case is decided, include a discussion of the merits of the matter referred to the magistrate, unless the parties are made aware of the substance of the discussion."  Judicial Ethics Advisory Committee Opinion 2009-17.

Trial judge in post-dissolution child support and visitation case erred by adopting verbatim order prepared by one party without giving pro se opponent opportunity to comment.  Ross v. Botha, 896 So.2d 567 (Fla. 4^th DCA 2004) (on rehearing).  (See also Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004).)