Nilio v. State

• Decision Date: 23 November 2022
• Docket Number: 1D22-0940
• Parties: Michael Joseph Nilio, Appellant, v. State of Florida, Appellee.
• Court: Florida District Court of Appeals

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Michael Joseph Nilio, Appellant, v. 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.

OPINION ON MOTION

PER CURIAM.

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 disqualify the trial court judge who presided over the postconviction proceedings. In these types of cases, a petition for writ of prohibition provides the only mechanism for review. See Sutton v. State, 975 So.2d 1073, 1080 (Fla. 2008) ("[A]lthough a petition for writ of prohibition may technically be classified as an original action, courts act only in their review capacity in [the] context [of a motion to disqualify] in the determination of a petition for writ of prohibition."); see, e.g., Lambrix v. State, 124 So.3d 890 (Fla. 2013) (affirming summary denial of two successive motions for postconviction relief and denying petition for writ of prohibition challenging the postconviction court's denial of a motion to disqualify); but see Graves v. State, 810 So.2d 986 (Fla. 2d DCA 2002) (affirming summary denial of Rule 3.850 motion and affirming denial of motion to disqualify).

Accordingly, the Court treats Appellant's Motion for Order Directing the Clerk of the Circuit Court to Supplement the Appellate Record and Request for Sanctions to be Imposed with an Extension of Time for the Filing of the Initial Brief Upon Supplementation, docketed on July 13, 2022, as a petition for writ of prohibition challenging the denial of a motion to disqualify. See Art. V, sec. 2, Fla. Const. ("The supreme court shall adopt rules for the practice and procedure in all courts including... a requirement that no cause shall be dismissed because an improper remedy has been sought."); see also Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought...").

Additionally, the Court directs the Clerk of this Court to open a separate case for the prohibition proceeding.

Finally, within thirty days of the date of this opinion, Petitioner shall file an amended petition which complies with Florida Rule of Appellate Procedure 9.100. The petition shall be accompanied by an appropriate appendix in accordance with Florida Rule of Appellate Procedure 9.220. Failure to comply timely with this opinion will result in dismissal of the petition without further opportunity to be heard.

Lewis and Roberts, JJ., concur;

Winokur, J., dissenting.

Michael Nilio filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which the court denied without evidentiary hearing. At some point around the time of the order was entered, Nilio also filed a motion to disqualify the judge. The court denied the motion to disqualify as well. To the extent Nilio is challenging the summary denial of his postconviction motion in this appeal, I agree that the appellate procedures set forth in Florida Rule of Appellate Procedure 9.141(b)(2) apply. But to the extent that Nilio challenges the denial of his motion to disqualify, this appears to me to be a regular appeal, not subject to the special appellate procedures in Rule 9.141(b)(2). As such, his motion to supplement the record should not be denied on the basis that it is not supported by Rule 9.141(b)(2). Moreover, I see no reason to treat the review of the order denying disqualification as a petition for writ of prohibition, as opposed to appeal of that order.

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