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Error to summarily deny claim that defense counsel was ineffective for not moving to disqualify trial judge, who had previously prosecuted defendant.

    A convicted criminal Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging that his trial counsel provided ineffective assistance.  One ground for the motion was that counsel was ineffective because he failed to move to disqualify the trial judge.  Defendant alleged that the judge, a former assistant state attorney, had previously prosecuted him in other cases when the judge.  Defendant asserted that "he feared he would not receive a fair trial and that he asked his counsel to file a motion to disqualify the judge" and argued that "but for counsel's failure to file the motion, he would not have entered a plea and would have proceeded to trial."  The postconviction court summarily denied the motion.

    The Second DCA reversed.  "The fact that the presiding judge prosecuted a defendant in a previous case is sufficient to support the defendant's claim of a well-founded fear that he would not receive a fair trial before the judge.  Goines v. State, 708 So.2d 656, 659 (Fla. 4th DCA 1998)."  Clayton v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D08-d2020, 6/26/2009).

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