Opinion
No. 1D22-0940
11-23-2022
Michael Joseph NILIO, Appellant, v. STATE of Florida, Appellee.
Michael Joseph Nilio, pro se, Appellant. Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.
On appeal from the Circuit Court for Duval County. London M. Kite, Judge.
Michael Joseph Nilio, pro se, Appellant.
Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.
Opinion on Motion
Per Curiam.
Appellant seeks review of an order summarily denying his motion for postconviction relief; additionally, Appellant seeks review of an order denying his motion to disqualify the trial court judge who presided over the postconviction proceedings. This opinion addresses the latter, not the former.
Previously, this Court issued an opinion clarifying that the order summarily denying the motion for postconviction relief was indeed a final order. See Nilio v. State, 348 So.3d 6, 7 (Fla. 1st DCA 2022).
Now, we take this opportunity to issue another clarifying opinion – one that addresses the extent to which an appellate court can review an order denying a motion to disqualify the lower court judge in a case where the postconviction court summarily denies all relief.
[1] As a general rule, an appellate court can review the denial of a motion to disqualify a trial court judge in one of two ways: (1) by petition for writ of prohibition; or, (2) by direct appeal. See Leveritt & Assocs., P.A v. Williamson, 698 So. 2d 1316, 1318 (Fla. 2d DCA 1997) ("A challenge to an order denying a motion to disqualify may be raised in a petition for writ of prohibition in accordance with the appellate rules, or it may be raised on direct appeal from the final judgment or order.") (emphasis added); but see Davis v. State, 311 So. 3d 927, 935 (Fla. 2d DCA 2020), review granted, No. SC20-1282, 2020 WL 5525913 (Fla. Sept. 15, 2020) ("An erroneous denial of a disqualification motion may be reviewed in the courts of appeal in one or both of two ways—by a petition for a writ of prohibition, which can be filed immediately after the order denying the motion, or by way of a direct appeal from a final judgment.") (emphasis added); but see also Topps v. State, 865 So. 2d 1253, 1255 n.2 (Fla. 2004) (quoting Public Employees Relations Commission v. District School Board of De Soto County, 374 So. 2d 1005, 1010 n.1 (Fla. 2d DCA 1979)):
Although the school board speaks in terms of the law of the case having been established on the jurisdictional point by these previous denials of writ of prohibition, the applicable doctrine is res judicata since proceedings for writs of prohibition are original proceedings before this court and thus the denials in those proceedings do not constitute prior rulings by this court in the same case now before us for review. The doctrines of "law of the case" and res judicata are somewhat similar, but the latter has a more binding effect and the distinction is a significant one.
In a case involving the summary denial of all postconviction claims, however, Florida Rule of Appellate Procedure 9.141(b)(2) limits what an appellate court can consider. First, the Rule limits the record under review. See Fla. R. App. P. 9.141(b)(2)(A) ("[T]he clerk of the lower tribunal shall electronically transmit to the court, as the record, the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing…") (emphasis added); see also Levin v. State, 298 So. 3d 681, 682 (Fla. 1st DCA 2020) ("We deny the motion [to supplement the record] because it fails to demonstrate that the items sought fall within the scope of the record as defined by Florida Rule of Appellate Procedure 9.141(b)(2)(A).").
Second, the Rule limits the decisions under review. Compare Fla. R. App. P. 9.141(b)(2)(D) ("On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order [denying the motion for postconviction relief without an evidentiary hearing] shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.") with Fla. R. App. P. 9.140(i) ("The court shall review all rulings and orders appearing in the record necessary to pass upon the grounds of an appeal. In the interest of justice, the court may grant any relief to which any party is entitled.") (emphasis added).
[2] Faced with a limited record and a limited scope of review in summary denial cases, an appellate court cannot rely on the invocation of its appellate jurisdiction to review an order denying a motion to disqualify the trial court judge who presided over the postconviction proceedings. In these types of cases, a petition for writ of prohibition provides the only mechanism for review. See Sutton v. State, 975 So. 2d 1073, 1080 (Fla. 2008) ("[A]lthough a petition for writ of prohibition may technically be classified as an original action, courts act only in their review capacity in [the] context [of a motion to disqualify] in the determination of a petition for writ of prohibition."); see, e.g., Lambrix v. State, 124 So. 3d 890 (Fla. 2013) (affirming summary denial of two successive motions for postconviction relief and denying petition for writ of prohibition challenging the postconviction court’s denial of a motion to disqualify); but see Graves v. State, 810 So. 2d 986 (Fla. 2d DCA 2002) (affirming summary denial of Rule 3.850 motion and affirming denial of motion to disqualify).
Accordingly, the Court treats Appellant’s Motion for Order Directing the Clerk of the Circuit Court to Supplement the Appellate Record and Request for Sanctions to be Imposed with an Extension of Time for the Filing of the Initial Brief Upon Supplementation, docketed on July 13, 2022, as a petition for writ of prohibition challenging the denial of a motion to disqualify. See Art. V, sec. 2, Fla. Const. ("The supreme court shall adopt rules for the practice and procedure in all courts including… a requirement that no cause shall be dismissed because an improper remedy has been sought."); see also Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought…").
Additionally, the Court directs the Clerk of this Court to open a separate case for the prohibition proceeding.
Finally, within thirty days of the date of this opinion, Petitioner shall file an amended petition which complies with Florida Rule of Appellate Procedure 9.100. The petition shall be accompanied by an appropriate appendix in accordance with Florida Rule of Appellate Procedure 9.220. Failure to comply timely with this opinion will result in dismissal of the petition without further opportunity to be heard.
Lewis and Roberts, JJ., concur; Winokur, J., dissents with opinion.
Winokur, J., dissenting.
Michael Nilio filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which the court denied without evidentiary hearing. At some point around the time of the order was entered, Nilio also filed a motion to disqualify the judge. The court denied the motion to disqualify as well. To the extent Nilio is challenging the summary denial of his postconviction motion in this appeal, I agree that the appellate procedures set forth in Florida Rule of Appellate Procedure 9.141(b)(2) apply. But to the extent that Nilio challenges the denial of his motion to disqualify, this appears to me to be a regular appeal, not subject to the special appellate procedures in Rule 9.141(b)(2). As such, his motion to supplement the record should not be denied on the basis that it is not supported by Rule 9.141(b)(2). Moreover, I see no reason to treat the review of the order denying disqualification as a petition for writ of prohibition, as opposed to appeal of that order.
Florida Rule of Appellate Procedure 9.141(b)(2) sets out special procedures for appeals following summary denial of post-conviction motions. These procedures show that an appeal under this subdivision bears little resemblance to a regular appeal. For instance, the appellant is not required to file a brief, which means that the order below is not presumed correct. Fla. R. App. P. 9.141(b)(2)(C)(i). Indeed, unlike a regular appeal, the appellate court is obligated to reverse "unless the record shows conclusively that the appellant is entitled to no relief," meaning the appellant bears no burden to demonstrate reversible error. Fla. R. App. P. 9.141(b)(2)(D). The fundamentally different structure for this type of appeal requires the record to be limited, which subdivision (b)(2)(A) does. Under this provision, the documents sought by Appellant would not qualify for a summary-denial appeal record.
But the whole point of Rule 9.141(b)(2) is to provide a special appellate procedure for review of orders denying postconviction motions without hearing. Specifically, the subdivision applies to appeals from orders summarily granting or denying "all claims raised in a [postconviction] motion without evidentiary hearing." In other words, the rule applies only to appeals of orders denying the postconviction motion themselves.
I see no reason to apply Rule 9.141(b)(2) to a challenge to the order denying disqualification. It does not seek review of an order denying claims raised in a postconviction motion. And because Rule 9.141(b)(2) does not apply to this challenge, the special record requirements of this subdivision do not apply.
A summary-denial appeal record consists of documents specifically related to the order denying relief. As such, there is no reason why the record related to an order on a motion to disqualify should be limited to the same documents.
Nilio seeks to supplement the record with the motion to disqualify and the order denying disqualification. This is an omission in the record, for which Nilio is entitled to supplement the record. Fla. R. App. P. 9.200(f). I would grant the motion to supplement with these documents.
I also disagree with the majority’s decision to treat Nilio’s challenge of the denial of his motion to disqualify as a petition for writ of prohibition. The purpose of a writ of prohibition is stop a court from acting in excess of its jurisdiction. See English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977) (holding that prohibition is an extraordinary writ "by which a superior court, having appellate and supervisory jurisdiction over an inferior court … may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction"). The writ is "preventive and not corrective." Id. at 296-97. "It issues only to prevent the commission of an act, and is not an appropriate remedy to revoke an order already issued." State ex rel. Harris v. McCauley, 297 So. 2d 825, 828 (Fla. 1974).
Yet the trial court has concluded its action in this matter, which is why Nilio has filed an appeal. Moreover, the trial judge apparently was not even asked to disqualify until the time the order denying relief was filed. Nilio appears to be seeking appellate review of the order denying disqualification, not seeking to stop the trial court from acting in excess of its jurisdiction in this matter. For this reason, I believe review of the order denying disqualification should be raised in this appeal. The issue should not, however, be subject to the limitations of Rule 9.141(b)(2).
In short, I would grant Nilio’s motion to supplement the record, and require him to treat the appeal of the order denying disqualification as a regular appeal rather than as a summary-denial appeal under Rule 9.141(b)(2).