Berger et al. v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Suarez v. State, 95 Fla. 42, 115 So. 519.See likewise State ex rel. Arnold v. Revels, 113 So.2d 218, 223 (Fla.App. 1959) (quoting State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939); State v. Steele, 348 So.2d 398 (Fla.App. 1977); Irwin v. Marko, 417 So.2d 1108, reh'g denied 419 So.2d 1198 (Fla.App. 1982); and Dickenson, 140 So. at 462), a proceeding where the supreme court set forth: "This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge.

As such, we think the respondent judge has created the appearance of having prejudged the attorney's fee issue in advance of hearing it and, accordingly, is required by our law to recuse himself. See, e.g., State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977), and authorities collected.See also Martin v. State, 804 So.2d 360 (Fla. 4th DCA 2001); Gonzalez v. Goldstein, 633 So.2d 1183, 1184 (Fla. 4th DCA 1994).

The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice. State v. Steele, 348 So.2d 398, 401 (Fla. 3d DCA 1977). During opening statement, direct examination, cross examination and closing argument, the trial judge repeatedly, and without objection, commented that he believed defense counsel's actions were improper. The court refused to allow defense counsel to have a side bar as to objections and even made a reference in front of the jury that the trial was "starting to sound like Jerry Springer.

We first address the denial of the plaintiff's motion to recuse. Recusal is appropriate where one of the parties or their counsel had dealings with a relative of the court, see Lytle v. Rosado, 711 So.2d 213 (Fla. 3d DCA 1998), or whenever "a modicum of reason" suggests that a judge's prejudice may bar a party from having his or her day in court, see State v. Steele, 348 So.2d 398, 401 (Fla. 3d DCA 1977). See also Crosby v. State, 97 So.2d 181 (Fla. 1957) (recusal appropriate where trial judge stated he was not going to "waste" any more time with the appellant); Lewis v. State, 530 So.2d 449 (Fla. 1st DCA 1988) (recusal appropriate where trial court advised defense counsel it did not want to hear anymore third degree felony cases).

See § 16.01, Fla. Stat. (1989). Ex parte communication between a trial judge and assistant attorney general concerning a pending criminal case is totally inappropriate and will mandate reversal if: 1) The defense has requested that the trial judge recuse himself or has requested a mistrial which is denied; 2) where the defendant can demonstrate that there was prejudice as a result of the improper communication; or 3) the judge is sitting as the trier of fact. See Livingston v. State, 441 So.2d 1083 (Fla. 1983); State v. Steele, 348 So.2d 398 (Fla. 3rd DCA 1977). In the instant case, there has been no showing that the inappropriate behavior of the trial judge prejudiced the defendant.

These allegations are sufficient to create a well-founded fear in the mind of petitioner (defendant below) that he will not receive a trial by an impartial tribunal. Fischer v. Knuck, 497 So.2d 240 (Fla. 1986); Deren v. Williams, 521 So.2d 150 (Fla. 5th DCA), rev. denied, 531 So.2d 169 (Fla. 1988); State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977). Petition for Writ of Prohibition GRANTED.

Prohibition granted. See Irwin v. Marko, 417 So.2d 1108 (Fla. 4th DCA 1982); State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977). JORGENSON, Judge, dissenting.

In light of these circumstances, we conclude that the trial judge's demeanor conveyed the impression that he was not impartial and deprived Driessen of a fair trial. Williams v. State, 143 So.2d 484 (Fla. 1962); James v. State, 388 So.2d 35 (Fla. 5th DCA 1980); State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977); Parise v. State, 320 So.2d 444 (Fla. 3d DCA 1975); Rockett v. State, 262 So.2d 242 (Fla. 2d DCA 1972); see Crosby v. State, 97 So.2d 181 (Fla. 1957); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939). We also find error in the admission of hearsay testimony by a prosecution witness concerning a bystander's identification of Driessen. Cox v. State, 394 So.2d 237 (Fla. 1st DCA 1981).

As such, we think the respondent judge has created the appearance of having prejudged the attorney's fee issue in advance of hearing it and, accordingly, is required by our law to recuse himself. See e.g., State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977), and authorities collected. Indeed, this appearance of impropriety is compounded by the fact that the respondent judge has declined to rule in any way on the motion to disqualify himself filed by the petitioners in this cause. A writ of prohibition, therefore, lies to restrain the respondent from further exercising jurisdiction in this cause.

Any other course would deny appellant due process. State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977). As our supreme court held in State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939):