Davis v. State, Case No. 2D17-517

CourtCourt of Appeal of Florida (US)
Writing for the CourtSALARIO, Judge.
Citation311 So.3d 927
Decision Date03 June 2020
Docket NumberCase No. 2D17-517
Parties Joshua DAVIS, Appellant, v. STATE of Florida, Appellee.

311 So.3d 927

Joshua DAVIS, Appellant,
STATE of Florida, Appellee.

Case No. 2D17-517

District Court of Appeal of Florida, Second District.

Opinion filed June 3, 2020

Howard L. Dimmig, II, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee; Helene S. Parnes, Senior Assistant Attorney General and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.


311 So.3d 930

This is Joshua Davis's appeal from his convictions for two counts of second-degree murder, one count of attempted first-degree murder, and one count of child abuse. It presents the question whether we should review the erroneous denial of a legally sufficient motion to disqualify a trial judge based on alleged bias or prejudice under section 38.10, Florida Statutes (2015), and Florida Rule of Judicial Administration 2.330(d)(1) for harmless error when the defendant in a criminal case raises the issue by way of a direct appeal from a judgment and sentence, as distinguished from a petition for a writ of prohibition. We hold that the erroneous denial of a disqualification motion on direct appeal should be reviewed for harmless error, with the question being whether there is a reasonable possibility that the error denied the defendant a fair trial before a neutral judge. Applying that standard to the incorrect denial of Mr. Davis's recusal motion in this case, we find the error harmless and affirm. Because the question is vitally important and our answer fairly debatable, we certify a question of great public importance to the Florida Supreme Court.


The underlying facts of this case are tragic, but a detailed telling is not necessary to understand the issues. On April 24, 2012, three male coworkers of Mr. Davis went to visit with him at his home. Mr. Davis was there with his young daughter. Mr. Davis and two of the men went outside and smoked marijuana. When they returned, the men all gathered in the living room with Mr. Davis's daughter. Everything seemed fine until Mr. Davis suddenly got up and left the room. He returned with a nine-millimeter pistol and shot all three men. Two died. There was no motive for the shootings; the men were all friends. In subsequent statements to law enforcement, Mr. Davis explained that after they came back into the house, his friends started behaving strangely and that it made him fearful for himself and his daughter. He also stated that he was "paranoid" from having smoked marijuana.

On May 10, 2012, Mr. Davis was indicted by a grand jury on two counts of first-degree murder, one count of attempted first-degree murder, and one count of child abuse. The State filed a notice declaring its intention to seek the death penalty. Mr. Davis filed a notice stating his intention to rely on an insanity defense. The case was scheduled for a trial before Judge Donald Jacobsen in May 2015. The trial was continued on the State's motion due to the sudden illness of its lead prosecutor.

At the time the continuance was granted, Judge Jacobsen anticipated leaving the capital felony division to become chief judge. Judge Jalal Harb was expected to take over the division when Judge Jacobsen left. When Judge Jacobsen granted the continuance, he told the parties about his expected departure and that he might continue to handle some cases in the capital felony division as needed.

That announcement triggered the series of events at issue in this appeal. Mr. Davis filed a motion requesting that Judge Jacobsen remain on the case because of his knowledge of the facts and because he had ruled on key motions relevant to a death-eligible case. The motion also asserted that Mr. Davis would move to disqualify Judge Harb were he to take the case because

311 So.3d 931

Judge Harb had been a prosecutor in the homicide division of the State Attorney's Office in the Tenth Circuit from August 2012 to March 2013—after Mr. Davis was indicted but while his case was pending.

Although one might expect that the State would not have an opinion about how the case should be assigned, it opposed Mr. Davis's motion and argued for Judge Harb taking the case over. It filed a motion to strike Mr. Davis's motion for Judge Jacobsen to keep the case in which it argued, as relevant here, that "Judge Harb had no involvement in the prosecution of this case whatsoever" and that "being in the same division where a case is pending does not rise to the level of prejudice." It concluded that "the defense is essentially judge shopping."

There was a hearing on these two motions on June 18, 2015. Judge Jacobsen presided. Judge Harb was there as an observer. Mr. Davis was present as well. The State argued that Judge Harb could readily come up to speed on the case and that he should be the one to hear it. With respect to Judge Harb's work at the State Attorney's Office, the prosecutor explained:

Judge, I would like to put on the record that I did, when I received the defense motion, pull this file, as well as any homicide committee notes that took place while Judge Harb was in our division. I pulled this file and every attorney note that's in this case. Judge Harb's not touched this file. He never attended a homicide committee meeting regarding this case. Other than the fact that this case was pending in the division when he was an attorney in that division, he's had no contact with this file.

Judge Jacobsen denied the motion that he remain on the case without prejudice to the making of a motion to disqualify Judge Harb and held the State's motion to strike in abeyance. In explaining his ruling, Judge Jacobsen stated:

I don't know if Judge Harb has had an opportunity—he's physically here just observing, and he was not made aware of all this. Obviously, if he had some contact with it, it would be, I would assume, a matter of recusal. If he did not have contact with it and there's a concern, then it would be a possible motion for disqualification.

Judge Harb took over the capital felony division as planned in July 2015. Mr. Davis promptly filed a motion to disqualify him under section 38.10 and rule 2.330(d)(1), together with a supporting affidavit. Mr. Davis alleged that he feared he would not receive a fair trial because (1) Judge Harb was an assistant state attorney in the homicide division while this case was pending and worked alongside the prosecutor in that division, (2) the homicide division functioned as a single unit with decisions being made not by individual prosecutors but rather by committee as a unified division, (3) the State's argument in opposition to his motion for Judge Jacobsen to remain on the case was both strenuous and based on factual research about Judge Harb that the judge could not consider in ruling on a motion to disqualify, and (4) Judge Harb was present at the hearing on the motion for Judge Jacobsen to remain on the case. Judge Harb rendered an order deeming the motion legally insufficient and denying it.

Mr. Davis did not file a petition for a writ of prohibition in this court seeking relief from Judge Harb's denial of his motion to disqualify. Pretrial litigation proceeded before Judge Harb for another year and three months. One month before trial, the State announced that it would not seek the death penalty.

The case was tried over three weeks in October 2016. The State's theory was that

311 So.3d 932

Mr. Davis intentionally shot the three men while under the influence of marijuana and, according to one of the State's experts, in a state of psychosis from having used the drug. Mr. Davis argued that the shootings were justified in light of the circumstances under which Mr. Davis's friends came to his home, the behavior of his friends after the men came back into his home, and the speed with which the relevant events occurred. He also presented an alternative defense of insanity based on expert testimony that he suffered from a mental infirmity resulting from traumatic events during his childhood that manifested in paranoid beliefs and behavior, which the State countered with expert testimony related to drug-induced paranoia.

The jury returned verdicts of guilty of the lesser included offenses of second-degree murder as to the two victims who were killed, guilty as charged with respect to the attempted first-degree murder of the victim who survived, and guilty as charged with respect to child abuse. Mr. Davis filed a motion for a new trial in which he argued, in relevant part, that Judge Harb was actually biased toward the State during the course of the trial, citing a series of trial rulings and exchanges with counsel. Judge Harb denied that motion, and the case proceeded to sentencing. Mr. Davis was sentenced to three concurrent life sentences for the murder counts—each with a twenty-five-year minimum mandatory based on the use of a firearm—and a concurrent five-year sentence for child abuse. This is his timely appeal.


Mr. Davis's principal argument is that his judgment and sentences should be reversed and the case remanded for a new trial because Judge Harb wrongly denied his motion for disqualification. It is important to understand what this argument says and what it does not. Mr. Davis does not argue that Judge Harb's conduct during his...

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1 practice notes
  • Nilio v. State, 1D22-0940
    • United States
    • Court of Appeal of Florida (US)
    • November 23, 2022
    ...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 mot......
1 cases
  • Nilio v. State, 1D22-0940
    • United States
    • Court of Appeal of Florida (US)
    • November 23, 2022
    ...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 mot......

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