Opinion
No. 1D22-0566
06-29-2022
Kevin K. CHOUTE, Petitioner, v. STATE of Florida, Respondent.
Jacob F. Harvell of Dunn & Harvell, Tallahassee, for Petitioner. Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Respondent. Robert Daniel Hogan of Boatman Ricci, Naples, for Judge Francis A. Allman, Jr.
Jacob F. Harvell of Dunn & Harvell, Tallahassee, for Petitioner.
Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Respondent.
Robert Daniel Hogan of Boatman Ricci, Naples, for Judge Francis A. Allman, Jr.
Per Curiam.
Kevin K. Choute petitions for a writ of prohibition directed to an order denying his verified motion to disqualify the trial judge from presiding over the underlying criminal case against him. The basis for disqualification is that the trial judge was the prosecutor in a 2007 criminal case against Choute. The State's response concedes that Choute's petition was timely and concludes that disqualification is required under the circumstances; counsel for the trial judge disagrees as to both issues.
The order at issue denied Choute's petition solely on the basis that it was untimely. No hearing was conducted on the motion. The petition, however, was filed within the timeframe set forth in Rule 2.330(g), Florida Rules of General Practice and Judicial Administration (2022), which requires that a motion to disqualify be filed "within a reasonable time not to exceed 20 days after discovery by the party or party's counsel, whichever is earlier, of the facts constituting the grounds for the motion." The motion was thereby facially sufficient as to timeliness.
It was also facially sufficient as to the merits, establishing that—although a direct conflict of interest may not exist—a criminal defendant in Choute's position may have a well-founded fear of not receiving fair treatment given the circumstances. W.I. v. State , 696 So. 2d 457, 458 (Fla. 4th DCA 1997) ("While the fact that the presiding judge prosecuted petitioner in a previous case does not present a direct conflict of interest, it does support petitioner's claim of a well founded fear that he will not receive a fair trial before this judge."); see also Goines v. State , 708 So. 2d 656 (Fla. 4th DCA 1998) (judge who prosecuted defendant six years earlier should not have presided over defendant's new criminal case of a similar nature). Choute's underlying proceeding at issue involves the same or similar charges of cocaine trafficking for which the trial judge prosecuted him years ago. In the absence of a hearing, the motion and attached affidavits to Choute's petition establish the requisite facial sufficiency.
The petition for writ of prohibition is granted with directions that the case be reassigned.
Makar, Jay, and M.K. Thomas, JJ., concur.