Bundy v. Rudd, 55611

CourtUnited States State Supreme Court of Florida
Citation366 So.2d 440
Docket NumberNo. 55611,55611
PartiesTheodore R. BUNDY, Petitioner, v. John A. RUDD, as Circuit Judge of the Second Judicial Circuit in and for Leon County, Florida, Respondent.
Decision Date22 December 1978

Michael J. Minerva, Public Defender, Tallahassee, for petitioner.

Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for respondent.


This case is before the Court on a petition for a writ of prohibition to prevent the respondent from continuing to exercise jurisdiction as trial judge in certain criminal proceedings presently pending against the petitioner in the Leon County Circuit Court. Because the case is one in which a sentence of death might ultimately be imposed, we have jurisdiction. Art. V, § 3(b)(4), Fla.Const.; see Reino v. State, 352 So.2d 853 (Fla.1977).

By indictment filed on July 27, 1978, petitioner was charged with two counts of murder in the first degree, three counts of attempted murder in the first degree, and two counts of burglary of a dwelling. After entering a plea of not guilty, petitioner filed a written motion to disqualify the trial judge, setting forth various incidents which had transpired during the course of the proceedings, and alleging that respondent had exhibited such prejudice as to place petitioner in fear that he would not receive a fair trial. The motion was accompanied by the supporting affidavits of petitioner, of the public defender appointed to represent him, and of four members of the public defender's staff who had participated in the preparation of petitioner's defense.

On November 20, respondent entered an order denying the motion for disqualification on the ground that the motion was legally insufficient. The order went on to explain, and in some respects controvert, the specific factual allegations contained in the motion. On the same day, petitioner filed a motion for reconsideration, to which he attached another affidavit of the public defender essentially denying that respondent's explanatory account of certain events was truthful. When that motion was similarly denied, again with explanation, petitioner instituted the present action in an effort to prevent his impending trial from commencing as scheduled on December 4.

Upon initial consideration, we determined that the petition on its face demonstrated a preliminary basis for relief and entered an order directing respondent to show cause why the motion and supporting affidavits were not legally sufficient. Having now considered all the relevant documents filed in this proceeding, we conclude that petitioner is entitled to the relief requested.

Regardless of whether respondent ruled correctly in denying the motion for disqualification as legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification "shall not pass on the truth of the facts alleged nor...

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110 cases
  • Lynch v. State
    • United States
    • United States State Supreme Court of Florida
    • November 6, 2008
    ...writ of prohibition is the proper means through which to challenge a lower court's denial of a motion to disqualify. See Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978); see also Carrow v. Fla. Bar, 848 So.2d 1283, 1285 (Fla. 2d DCA Lynch contends that the conduct of the postconviction court a......
  • Breakstone v. MacKenzie
    • United States
    • Court of Appeal of Florida (US)
    • September 14, 1989
    ...truth of the facts alleged, thus providing additional grounds for disqualification. We agree. See Fla.R.Civ.P. 1.432(d); Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978); Stimpson Computing Scale Co. v. Knuck, 508 So.2d 482, 484 (Fla. 3d DCA 1987); State ex rel. Allen v. Testa, 414 So.2d 38, 39......
  • Livingston v. State
    • United States
    • United States State Supreme Court of Florida
    • October 27, 1983
    ...the moving party can seek review by petitioning the court with appellate jurisdiction for a writ of prohibition. See, e.g., Bundy v. Rudd, 366 So.2d 440 (Fla.1978); Wilson v. Renfroe, 91 So.2d 857 (Fla.1956); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939); Dickenson v. Parks......
  • Davis v. State
    • United States
    • Court of Appeal of Florida (US)
    • June 3, 2020
    ...against the movant or in favor of his or her opponent. See Cave v. State, 660 So. 2d 705, 708 (Fla. 1995) (quoting Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) ); Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983). The question is solely whether the allegations of the sworn motion, if......
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