Nassetta v. Kaplan

• Decision Date: 07 March 1990
• Docket Number: No. 89-2994,89-2994
• Citation: 557 So.2d 919
• Parties: 15 Fla. L. Weekly D630 Keith NASSETTA, Petitioner, v. Stanton S. KAPLAN, Judge, Circuit Court, Broward County, Respondent.
• Court: Florida District Court of Appeals

Page 919

557 So.2d 919

15 Fla. L. Weekly D630

Keith NASSETTA, Petitioner, v. Stanton S. KAPLAN, Judge, Circuit Court, Broward County, Respondent.

No. 89-2994.

District Court of Appeal of Florida,

Fourth District.

March 7, 1990.

Fred Haddad, Fort Lauderdale, for petitioner.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for respondent.

LETTS, Judge.

This petition for a writ of prohibition seeks to overturn the trial judge's denial of a motion to disqualify him because he found the motion legally insufficient. Petition is denied.

The petitioner in this case is a lawyer, suspended from the practice of law, and charged with fraud and grand theft of some $650,000. Standard bond was set at $65,000. The defense attorney sought a reduction thereof, allegedly necessary to make bail. The trial judge denied it, commenting, off the record, that he did not care whether the lawyer got out of jail or not. It is this comment that we believe merits consideration. True, there were other allegations of prejudicial remarks, but in other reported cases, all of those have been clearly held to be insufficient and we do not address them.

Under the facts of this case, the judge's statement that he did not care whether the defendant got out of jail or not was not legally sufficient, under Florida Rule of Criminal Procedure 3.230, to establish that the judge was prejudiced, either against that defendant, or in favor of the state. Had the bond set been excessive, we might have thought otherwise. However, this court denied an earlier petition for a writ of habeas corpus in this very same case, in which the defendant claimed at that time that the bond was excessive.

We are of course aware that standard bond can sometimes prove to be excessive, see Rawls v. State, 540 So.2d 946 (Fla. 5th DCA 1989), but we do not believe it was here. There are clearly some factors present which favor a reduced bond. The defendant has lived in the community a long time, practiced law there for 14 years, and has many relatives in the area, including a daughter and his parents. On the other hand, he is no longer practicing law; he is divorced from his former spouse, and he has no permanent home. His purported $3 million dollars worth of property in the county can be looked at in two ways: it may tend to keep him there, but it might also be the source of getaway money. Further, the existence of that very property might well indicate he could have made the bond set if he had set his mind to it. ¹ In any event, adverse judicial rulings are not a basis for disqualifying a judge for bias or prejudice, e.g., Claughton v. Claughton, 452 So.2d 1073 (Fla. 3d DCA 1984).

Were the above facts the only ones, we would have denied this petition without comment. However, instead of limiting himself to language evincing legal insufficiency of the motion, as the case law suggests he should do, the trial judge went on to hold a dialogue with trial counsel about his comment. On this occasion, however, we do not believe the judge's admittedly gratuitous remarks require that we reverse him. In Clark Auto Leasing & Rentals, Inc. v. Lupo, 547 So.2d 1016 (Fla. 4th DCA 1989), and more importantly in Bundy v. Rudd, 366 So.2d 440 (Fla.1978), the trial judge attempted to " 'pass on the truth of the facts alleged.' " Id. at 442. By contrast, the judge here defended himself, not by saying that the remarks attributed to him were false, but by saying he was being quoted out of context. This might seem a...