Opinion
No. 85-2006.
January 22, 1986.
William Lasley of Lasley Winkler, West Palm Beach, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for respondent.
Petitioner Michael Canady seeks a writ of prohibition prohibiting respondent, the Honorable Thomas Johnson, from presiding over petitioner's trial on charges of first degree murder and possession of marijuana.
Petitioner brought a motion to disqualify respondent pursuant to Rule 3.230, Florida Rules of Criminal Procedure. Rule 3.230(d) provides in pertinent part:
(d) The judge presiding shall examine the motion and supporting affidavits to disqualify him for prejudice to determine their legal sufficiency only, but shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification. If the motion and affidavits are legally sufficient, the presiding judge shall enter an order disqualifying himself and proceed no further therein.
We have examined the motions and supporting affidavits and conclude that the combined allegations contained within these documents meet the test of legal sufficiency and therefore the trial judge should have disqualified himself and proceeded no further in this case. See Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981); Bundy v. Rudd, 366 So.2d 440 (Fla. 1978); and Livingston v. State, 441 So.2d 1083 (Fla. 1983).
We grant and issue the writ of prohibition and direct the respondent judge to recuse himself in this matter. We further instruct the chief judge of the Circuit Court for the Fifteenth Judicial Circuit to cause this case to be reassigned for trial.
PROHIBITION GRANTED.
DELL and WALDEN, JJ., concur.
GLICKSTEIN, J., concurs with opinion.
I concur with the panel's conclusion that the petition is legally sufficient. These petitions place conscientious trial judges who believe themselves to be fair and impartial in a difficult position. They must — having been accused of doing or saying something that is interpreted by an accused as evidence of prejudice or pre-judgment — coolly and dispassionately review the legal sufficiency of the accused's petition to disqualify. There must be a terrible temptation on the part of the trial judge, faced with that situation, to defend his or her fairness. It seems only natural to do so.
Our luxury is being separated from the incident and coolly viewing the record and the law with the assistance of a bright staff attorney. The trial judge has neither advantage.
Our conclusion is not a comment on the fairness of the trial judge, but on the legal sufficiency of the petition.