Nilio v. State, 1D22-0940

CourtCourt of Appeal of Florida (US)
PartiesMichael Joseph Nilio, Appellant, v. State of Florida, Appellee.
Docket Number1D22-0940
Decision Date23 November 2022

Michael Joseph Nilio, Appellant,

State of Florida, Appellee.

No. 1D22-0940

Florida Court of Appeals, First District

November 23, 2022

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Circuit Court for Duval County. London M. Kite, Judge.

Michael Joseph Nilio, pro se, Appellant.

Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.



Appellant seeks review of an order summarily denying his motion for postconviction relief; additionally, Appellant seeks review of an order denying his motion to disqualify the trial court judge who presided over the postconviction proceedings. This opinion addresses the latter, not the former.

Previously, this Court issued an opinion clarifying that the order summarily denying the motion for postconviction relief was indeed a final order. See Nilio v. State, No. 1D22-0940, 2022 WL 2338412, at *1 (Fla. 1st DCA June 29, 2022).


Now, we take this opportunity to issue another clarifying opinion - one that addresses the extent to which an appellate court can review an order denying a motion to disqualify the lower court judge in a case where the postconviction court summarily denies all relief.

As a general rule, an appellate court can review the denial of a motion to disqualify a trial court judge in one of two ways: (1) by petition for writ of prohibition; or, (2) by direct appeal. See Leveritt & Assocs., P.A. v. Williamson, 698 So.2d 1316, 1318 (Fla. 2d DCA 1997) ("A challenge to an order denying a motion to disqualify may be raised in a petition for writ of prohibition in accordance with 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 motion may be reviewed in the courts of appeal in one or both of two ways-by a petition for a writ of prohibition, which can be filed immediately after the order denying the motion, or by way of a direct appeal from a final judgment.") (emphasis added); but see also Topps v. State, 865 So.2d 1253, 1255 n.2 (Fla. 2004) (quoting Public Employees Relations Commission v. District School Board of DeSoto County, 374 So.2d 1005, 1010 n.1 (Fla. 2d DCA 1979)):

Although the school board speaks in terms of the law of the case having been established on the jurisdictional point by these previous denials of writ of prohibition, the applicable doctrine is res judicata since proceedings for writs of prohibition are original proceedings before this court and thus the denials in those proceedings do not constitute prior rulings by this court in the same case now before us for review. The doctrines of "law of the case" and res judicata are somewhat similar, but the latter has a more binding effect and the distinction is a significant one

In a case involving the summary denial of all postconviction claims, however, Florida Rule of Appellate Procedure 9.141(b)(2) limits what an appellate court can consider. First, the Rule limits the record under review. See Fla. R. App. P. 9.141(b)(2)(A) ("[T]he


clerk of the lower tribunal shall electronically transmit to the court, as the record, the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing...") (emphasis added); see also Levin v. State, 298 So.3d 681, 682 (Fla. 1st DCA 2020) ("We deny the motion [to supplement the record] because it fails to demonstrate that the items sought fall within the scope of the record as defined by Florida Rule of Appellate Procedure 9.141(b)(2)(A).").

Second, the Rule limits the decisions under review. Compare Fla. R. App. P. 9.141(b)(2)(D) ("On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order [denying the motion for postconviction relief without an evidentiary hearing] shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.") with Fla. R. App. P. 9.140(i) ("The court shall review all rulings and orders appearing in the record necessary to pass upon the grounds of an appeal. In the interest of justice, the court may grant any relief to which any party is entitled.") (emphasis added).

Faced with a limited record and a limited scope of review in summary denial cases, an appellate court cannot rely on the invocation of its appellate jurisdiction to review an order denying a motion...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT