Filed: Nov. 09, 2018
Latest Update: Mar. 03, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT YORLAN ESPINOSA PENA; WARNER B. ) BARRANTES; SARAH HAMADI; ROBERT ) L. GARCIA; RANDY MORENO; PETER W. ) RODINO; MIGUEL GUZMAN; MICHAEL R. ) MYZAK; MAXWELL S. GIVEN; MAX GENE ) MILLER; MARK R. DHONDT; MARK S. ) MAGITMAN; LAZARO MANUEL URQUILA ) VENTA; KEVIN PEREZ; JOSEPH ) RICHARD DIAZ; JESUS A. SANCHEZ; ) IRVING HERNANDEZ; HENRY GUEVARA;) PATRICK J. GARRY; GA
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT YORLAN ESPINOSA PENA; WARNER B. ) BARRANTES; SARAH HAMADI; ROBERT ) L. GARCIA; RANDY MORENO; PETER W. ) RODINO; MIGUEL GUZMAN; MICHAEL R. ) MYZAK; MAXWELL S. GIVEN; MAX GENE ) MILLER; MARK R. DHONDT; MARK S. ) MAGITMAN; LAZARO MANUEL URQUILA ) VENTA; KEVIN PEREZ; JOSEPH ) RICHARD DIAZ; JESUS A. SANCHEZ; ) IRVING HERNANDEZ; HENRY GUEVARA;) PATRICK J. GARRY; GAB..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
YORLAN ESPINOSA PENA; WARNER B. )
BARRANTES; SARAH HAMADI; ROBERT )
L. GARCIA; RANDY MORENO; PETER W. )
RODINO; MIGUEL GUZMAN; MICHAEL R. )
MYZAK; MAXWELL S. GIVEN; MAX GENE )
MILLER; MARK R. DHONDT; MARK S. )
MAGITMAN; LAZARO MANUEL URQUILA )
VENTA; KEVIN PEREZ; JOSEPH )
RICHARD DIAZ; JESUS A. SANCHEZ; )
IRVING HERNANDEZ; HENRY GUEVARA;)
PATRICK J. GARRY; GABRIEL L. )
CUERVO; EDWIN OSCAR TORRES )
VAZQUEZTELL; DANIEL J. BARRON; )
CYPRISS A. WOODALL; CLAUDIA )
GRAVERAN; ALEXANDER M. HOWARD; )
AIMEE SANTANA PEREZ; GEOFFREY C. )
HART; and BLAS E. ALEMAN, )
)
Petitioners, )
)
v. ) Case No. 2D17-4465
)
STATE OF FLORIDA, )
)
Respondent. )
)
Opinion filed November 9, 2018.
Petition for Writ of Certiorari to the Circuit
Court for the Twentieth Judicial Circuit for
Lee County; sitting in its appellate capacity.
Louis Arslanian, Hollywood, for Petitioners.
Pamela Jo Bondi, Attorney General,
Tallahassee, and C. Todd Chapman,
Assistant Attorney General, Tampa, for
Respondent.
MORRIS, Judge.
The petitioners, drivers appearing in county court for civil traffic infractions,
seek certiorari review of a circuit court order denying their joint petition for writ of
prohibition, which sought review of the county judge's denial of the petitioners' motions
to disqualify the county judge from presiding over their traffic cases. The circuit court
denied the petition for writ of prohibition, concluding that the motions to disqualify the
county judge were legally insufficient. We grant the petition for writ of certiorari because
the motions were legally sufficient and the circuit court departed from the essential
requirements of the law in denying the petition for writ of prohibition.
I. Background
In their motions to disqualify filed in county court, the petitioners asserted
that they had a well-founded fear that they would not receive a fair proceeding before
the county judge based on the following facts:
[Petitioners' counsel] was approached by [a hearing
officer] in the middle of December, 2016 and was warned
that [the hearing officer] "was talked to" and that he would no
longer be as lenient as he had been in the past.
Not knowing who "talked to" [the hearing officer],
[counsel] was unaware if any inappropriate communications
had taken place between [the hearing officer] and any other
court official.
In order to make that determination, the undersigned's
office requested all e-mails relating to traffic court from [the
county judge].
[Counsel's] office received a series of e-mails from
court administration on May 9, 2017. One of these e-mails
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was troubling, and appears to establish inappropriate
conduct on the part of the clerk's office and [the county
judge].
An e-mail dated Wednesday, December 14, 2016[,]
was written from [a] Clerk employee[] to [the county judge].
In this e-mail, [the employee] references the hearing officer
who is presiding over the docket on that day. Removing
herself from her position as a neutral clerk employee, and
becoming an adversary to drivers, [the employee] reported
to [the county judge] that the hearing officer was being
"talked into withholding adjudication" and she needed to talk
to [the county judge] about this conduct in court. On the
same day, [the county judge] replied to [the employee] and
assured her that he will "have a discussion with him shortly."
Shortly after this e-mail was sent by [the county
judge], [counsel] was approached by [the hearing officer],
and told that he had "been talked to" and that he would no
longer be as lenient as he had been in the past.
In May 2017, [the county judge] called the
undersigned to the bench in open court. [The county judge]
questioned why [counsel's] law firm had requested his traffic
related e-mails. [Counsel] explained that he had been told
by the traffic magistrates that they had "been talked to" and
would no longer be as lenient as they had been in the past.
Further, [the county judge] explained that he had read a
report that indicated that Lee County was known as a place
for aggressive drivers, presumably explaining why he "talked
to" the traffic magistrates about their actions in traffic court.
In addition to the above allegations, the motions also alleged that after counsel had
inquired about the e-mails, his clients' cases were moved from their originally-scheduled
docket to a special docket assigned to this particular county judge.
On April 20, 2017[,] [counsel's] law firm filed a number
of Notices of Appearances for traffic infractions, requesting a
County Court Judge to hear the cases.
....
[Counsel's] office learned that this matter was
assigned to [the county judge's] traffic docket on May 17,
2017.
....
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Even though another Judge was scheduled to be assigned
these cases, [the county judge] took it upon himself to assign
all of these cases to a special docket in his own courtroom.
The undersigned's office called the Clerk's office to ascertain
why this happened and was advised by an assistant
Supervisor that another Judge should have been assigned
those cases based on the pre-determined schedule. The
undersigned's office asked for a copy of the Administrative
Order that allowed for one Judge to avoid the random
assignment of cases and to place them on a special docket
in his/her own courtroom. That request has not been
responded to at the time of the filing of this motion. Another
supervisor at the clerk's office did reply with an e-mail,
explaining that the judge's dockets were busy and this
special docket was set up in an effort to deal with the high
number of traffic cases presented to the county court judges.
Again, a copy of the administrative order authorizing this was
requested, but no reply has been received.
Attached to the motion to disqualify was an affidavit of counsel attesting to the facts
alleged in the motion, as well as a copy of the e-mails between the county judge and the
clerk's employee. The motion also described past traffic court rulings by the county
judge:
In the past, [the county judge] required a number of
the undersigned's clients to pay their fines and court costs
the same day as their traffic hearing. This ruling was in clear
violation of Traffic Rule 6.480(a). Consequently, many
clients had their driver license suspended improperly based
on this improper court order.
Recently, [the county judge] ruled that a recapture
period applied to the speedy trial rule for traffic infractions,
even though the Traffic Rules clearly do not provide for a
recapture period (Traffic Rule 6.325(a)). Consequently,
three drivers who were tried more than 180 days after the
issuance date of their citation did not have their cases
dismissed, even though they were not attributable for any
delays in their case. These cases are now on appeal before
the Lee County Circuit Court.
[The county judge] has recently ruled that if a driver
avails himself of Traffic Rule 6.630(n), that driver waives
his/her right to a speedy trial, even though the rule makes no
mention of this waiver.
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The county judge denied the motions to disqualify "as legally insufficient."
The petitioners sought review of the denial of their motions to disqualify by
filing a joint petition for writ of prohibition in the circuit court. See Sutton v. State, 975
So. 2d 1073, 1077 (Fla. 2008) ("This Court has recognized that prohibition is a proper
remedy to seek review of the denial of a motion to disqualify . . . ."). The circuit court
denied the petition, concluding that
[p]etitioners did not have a well-founded, objectively
reasonable, fear they would not receive fair hearings. 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. The motions to disqualify, and
petition, allege no statement of bias or prejudice on the part
of the county judge towards Petitioners, only that he
mentioned a report about aggressive drivers. [Thus,] the
motions to disqualify were legally insufficient.
II. Analysis
In their petition for writ of certiorari filed in this court, the petitioners argue
that the circuit court departed from the essential requirements of the law in denying their
petition for writ of prohibition because their motions to disqualify the county judge were
legally sufficient in that the facts as alleged gave the petitioners a reasonable fear of
receiving an unfair trial before the county judge.
Because the petition for writ of prohibition filed in the circuit court sought
review of the denials of the motions to disqualify by the county judge, the petition for writ
of prohibition served a similar function as a direct appeal. Sutton, 975 So. 2d at 1077-
78. Therefore, the circuit court's denial of the petition for writ of prohibition is reviewable
in this court by certiorari. See
id. at 1079-80. "[T]he reviewing court in this context can
only grant a petition for writ of certiorari based on a departure from the essential
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requirements of law. A departure from the essential requirements of law is not mere
legal error, but instead, involves a 'gross miscarriage of justice.' " Id. at 1080-81
(citation omitted) (quoting Haines City Cmty. Dev. v. Heggs,
658 So. 2d 523, 527 (Fla.
1995)).
A party moving to disqualify a judge must file an affidavit in good faith
stating fear that he or she will not receive a fair trial on account of the prejudice of the
trial judge, alleging facts and reasons for the belief that prejudice exists. Gregory v.
State, 118 So. 3d 770, 778 (Fla. 2013) (citing ยง 38.10, Fla. Stat. (2011)). A judge ruling
on an initial motion to disqualify "shall determine only the legal sufficiency of the motion
and shall not pass on the truth of the facts alleged."
Id. (quoting Fla. R. Jud. Admin.
2.330(f)). "Whether the motion is legally sufficient requires a determination as to
whether the alleged facts would create in a reasonably prudent person a well-founded
fear of not receiving a fair and impartial trial."
Id. (quoting Rodriguez v. State,
919 So.
2d 1252, 1274 (Fla. 2005)). The fear must be objectively reasonable; a subjective fear
is not sufficient.
Id. (quoting Arbelaez v. State,
898 So. 2d 25, 41 (Fla. 2005)). If the
motion is legally sufficient, the judge shall grant disqualification and proceed no further
in the action; if the motion is legally insufficient, the judge shall deny the motion without
commenting on the allegations in the motion.
Id. (quoting rule 2.330(f)).
Here, 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. Compare Thompson v. State, 759 So. 2d 650, 659 (Fla.
2000) ("[T]he fact that a judge has ruled adversely to the party in the past does not
constitute a legally sufficient ground for a motion to disqualify."), Arbelaez v. State, 775
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So. 2d 909, 916 (Fla. 2000) ("As to the claims of bias and prejudice, there was nothing
in [the defendant's] allegations to show that [the judge] had a personal bias or prejudice
against him. Neither her 'tough-on-crime' stance nor her former employment as a
prosecutor was legally sufficient for disqualification."), and Foy v. State, 818 So. 2d 704,
706 (Fla. 5th DCA 2002) (holding that judge's comments that "there is no cure for
pedophilia" and that "treatment doesn't do a bit of good" did not express "any standard
sentencing policy for those individuals charged with committing sexual acts on minors"
and were therefore legally insufficient for disqualification) with Martin v. State,
804 So.
2d 360, 364 (Fla. 4th DCA 2001) (holding that motion to disqualify was legally sufficient
where "the judge's remarks could reasonably be interpreted as announcing a fixed
intention to have probation invariably follow any jail or prison sentence that he would
impose"), and Torres v. State,
697 So. 2d 175, 177 (Fla. 4th DCA 1997) ("[A] judge's
announced policy that no probation violator will be sentenced to time served amounts to
legally sufficient grounds for disqualification because the policy personally affects the
petitioner and places him in fear that he will not receive a fair sentencing hearing.").
However, the petitioners 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 e-mails and that soon
thereafter, counsel's clients' cases were removed from their original docket and
transferred to the docket of this particular county judge. These allegations combined
were sufficient to give the petitioners an objective fear that they would not receive a fair
trial before this particular county judge in their traffic cases. See State v. Voong Leng,
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987 So. 2d 236, 237 (Fla. 4th DCA 2008) (granting petition for writ of certiorari because
motion to disqualify the county judge alleged prior comments by the trial judge which
showed bias and caused the movant to have a well-grounded fear that he would not
receive a fair trial). Contrary to the circuit court's conclusion, the allegations in the
motion to disqualify were not general and speculative; rather, they were specific to
counsel and his traffic clients, and they were based on specific conversations between
the county judge and the clerk's employee, the hearing officer, and counsel.
In denying the writ of prohibition, the circuit court departed from the
essential requirements of law. The circuit court's order results in a miscarriage of justice
because twenty-eight traffic cases remain pending before a county judge who should
have recused himself based on the petitioners' allegations establishing a well-founded
fear of not receiving a fair and impartial trial. See generally Voong Leng, 987 So. 2d at
237 (granting certiorari relief where circuit court improperly denied writ of prohibition
because motion to disqualify was legally sufficient and two other circuit courts had
granted writs of prohibition on identical grounds); State v. Shaw,
643 So. 2d 1163,
1164-66 (Fla. 4th DCA 1994) (granting certiorari relief where circuit court improperly
granted petition for writ of prohibition and circuit court's ruling resulted "in a violation of
clearly established law and a miscarriage of justice because it offends procedures
integral to the fair administration of justice").
Petition for writ of certiorari granted; order quashed.
LaROSE, C.J., Concurs.
ATKINSON, J., Dissents with opinion.
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ATKINSON, Judge, Dissenting.
I would deny the petition for writ of certiorari. The circuit court did not
violate "a clearly established principle of law resulting in a miscarriage of justice" when it
determined that the Petitioners' motions to disqualify the county court judge were legally
insufficient. State v. Shaw, 643 So. 2d 1163, 1165 (Fla. 4th DCA 1994) (quoting Combs
v. State,
436 So. 2d 93, 96 (Fla. 1983)); see Fla. R. Jud. Admin. 2.330(d)(1) (requiring
that a motion to disqualify "show . . . that the party fears that he or she will not receive a
fair trial or hearing because of specifically described prejudice or bias of the judge"
(emphasis added)); Sutton v. State,
975 So. 2d 1073, 1081 (Fla. 2008) ("A departure
from the essential requirements of law is not mere legal error, but instead, involves a
gross miscarriage of justice. . . . These standards govern the process of a district court
of appeal in certiorari review of an order on a petition for writ of prohibition in this
context to ensure that such review will neither function like nor actually be a second
appeal." (internal citations and quotation marks omitted)).
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