Opinion
No. 3D20-177
02-26-2020
Fernando FERNANDEZ, Petitioner, v. The STATE of Florida, Respondent.
Law Offices of Daniel J. Tibbitt and Daniel Tibbitt, for petitioner. Ashley Moody, Attorney General and Michael W. Mervine, Bureau Chief - Criminal Appeals, for respondent.
Law Offices of Daniel J. Tibbitt and Daniel Tibbitt, for petitioner.
Ashley Moody, Attorney General and Michael W. Mervine, Bureau Chief - Criminal Appeals, for respondent.
Before FERNANDEZ, LOGUE and MILLER, JJ.
PER CURIAM.
Fernando Fernandez ("Fernandez") seeks a writ of prohibition to preclude the trial judge below from presiding at an evidentiary hearing on his post-conviction motion in which Fernandez's former counsel will testify. Fernandez alleges that the trial judge and his former counsel's relationship deteriorated to such an extent that the trial judge entered an order disqualifying himself from all of that lawyer's cases. In support of his allegation, Fernandez offers a transcript of a hearing reflecting a contentious exchange between the lawyer and the trial judge culminating in the judge's instruction to his bailiff to escort the lawyer out of his courtroom.
The facts alleged in the underlying motion to disqualify the trial judge must be accepted as true. Wall v. State, 238 So.3d 127, 143 (Fla. 2018). When reviewing the motion for disqualification, we consider whether the allegations "would place a reasonably prudent person in fear of not receiving a fair and impartial trial." MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla. 1990) ; Barber v. MacKenzie, 562 So.2d 755, 757 (Fla. 3d DCA 1990). Canon 3E(1)(a) of the Code of Judicial Conduct requires disqualification when a judge "has a personal bias or prejudice concerning a party or a party's lawyer."
Because the trial judge, as the finder of fact, will make credibility determinations as to Fernandez's former counsel's testimony at the hearing, we find that Fernandez has established a reasonable fear that he will not receive a fair hearing. We do not, by any means, imply that the trial judge will actually be unfair or that he has an actual prejudice, we simply hold that under these circumstances petitioner has met his burden.
Petition granted.