Rogers v. State, 78349

Decision Date01 July 1993
Docket NumberNo. 78349,78349
Citation630 So.2d 513
Parties18 Fla. L. Weekly S413 Jerry Lane ROGERS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Larry Helm Spalding, Capital Collateral Representative, Martin J. McClain, Chief Asst. CCR and Kenneth D. Driggs, Asst. CCR, Office of Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.

SHAW, Justice.

Rogers appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We reverse.

The facts are set out fully in our opinion on direct appeal. See Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). Rogers and an accomplice, Thomas McDermid, attempted to rob a Winn-Dixie supermarket and while escaping shot the store manager three times at close range, killing him. Rogers was convicted of first-degree murder and consistent with the jury's unanimous recommendation was sentenced to death based on five aggravating 1 and no mitigating circumstances. This Court affirmed on direct appeal, after striking three aggravating circumstances. 2 The trial court denied Rogers' motion for postconviction relief following an evidentiary hearing, and Rogers appeals, raising sixteen issues and numerous subissues. 3 We address a single issue.

Rogers claims that the court on collateral review erred in failing to grant his motion that the judge recuse himself. (The motion and accompanying dialogue are appended to this opinion.) Four days into the evidentiary hearing on collateral review, near the completion of trial counsel Tumin's testimony, defense counsel asked Tumin if he had had a conversation with the presiding judge that morning and if Tumin had then told Jeff Walsh, an investigator, that "the Court indicated to you it [had already] arrived at a decision in this matter." Trial counsel Tumin conceded having had a conversation with the judge, but denied telling anyone that the judge had said he had made up his mind. The judge then interceded from the bench and offered his own version of events--he strongly denied having had a discussion with Tumin and denied telling him that he had already made up his mind--and called a ten minute recess.

Following recess, defense counsel entered an oral motion for recusal, against which the judge argued strenuously and at length. When defense counsel asked to call a supporting witness, the judge continued to protest heatedly and commented, "Now, what is it that you want to testify about? Do you want to create perjured testimony here?" After investigator Walsh testified confirming defense counsel's version of events, the judge himself questioned the investigator and suggested that the bailiff be called to support his (the judge's) version. In response to defense counsel's plea that the judge not inquire further into the "provability" of the charge of bias, the judge pressed on, indicating that further fact-finding was necessary. Pursuant to the judge's request, the State then called and questioned the bailiff, who supported the judge's position. The judge then Although the right to seek disqualification of a presiding judge is substantive in nature, the process governing disqualification is procedural and controlled by Florida Rule of Criminal Procedure 3.230, 4 which provides in part:

criticized defense counsel for making its motion lightly and denied the motion.

(a) Grounds for Disqualification. The state or the defendant may move to disqualify the judge assigned to try the cause on the grounds that the judge is prejudiced against the movant or in favor of the adverse party....

(b) Motion to Be in Writing. Every motion to disqualify shall be in writing and be accompanied by 2 or more affidavits setting forth facts relied on to show the grounds for disqualification and a certificate of counsel of record that the motion is made in good faith.

....

(d) Determination of Legal Sufficiency. The judge presiding shall examine the motion and supporting affidavits to disqualify the judge for prejudice to determine their legal sufficiency only, but shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification. If the motion and affidavits are legally sufficient, the presiding judge shall enter an order disqualifying himself or herself and proceed no further therein.

The requirements set forth in the rule were established "to ensure public confidence in the integrity of the judicial system as well as to prevent the disqualification process from being abused for the purposes of judge-shopping, delay, or some other reason not related to providing for the fairness and impartiality of the proceeding." Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983). The inquiry focuses on the reasonableness of the defendant's belief that he or she will not receive a fair hearing:

[A] party seeking to disqualify a judge need only show a well grounded fear that he [or she] will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant's mind and the basis for such feeling. The question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially.

Id. at 1086 (quotation marks and citations omitted). As to the sufficiency of the allegations:

Facts alleged in the motion need only show that the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge. If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.

Id. at 1087 (quotation marks and citations omitted). The ultimate inquiry is "whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." Id. This determination must be based solely on the alleged facts--the presiding judge "shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification." Fla.R.Crim.P. 3.230(d).

This Court reversed an order denying recusal on facts similar to the present in Bundy v. Rudd, 366 So.2d 440 (Fla.1978). There, we held:

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 adjudicate the question of disqualification. When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then Id. at 442 (quotation marks and citations omitted).

exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case--the creation of an intolerable adversary atmosphere between the trial judge and the litigant.

We conclude that Bundy controls the present case. Once the motion for recusal was made, the present judge, rather than limiting inquiry to a determination of the motion's legal sufficiency, actively participated in, and directed the outcome of, a mini-hearing to determine the truthfulness of the defendant's allegations against him. When defense counsel objected to the judge's fact-finding efforts, the judge insisted that such was his proper role. As a result of the judge's actions, the proceeding degenerated into a heated, contentious melee, with the judge calling and questioning witnesses, and the State and judge uniting against the defendant. Any pretense of judicial impartiality was lost. Regardless of the legal sufficiency of Rogers' motion, we conclude that he is entitled to a new evidentiary hearing before a different judge because the appearance of bias generated during this mini-hearing was so pervasive it tainted the remainder of the proceeding, as happened in Bundy.

"We recognize the difficulty in expecting a judge to sit as silent as a sphinx on the Nile in the face of personal attacks on his impartiality and his integrity. A certain amount of visceral reaction is unavoidable." Nassetta v. Kaplan, 557 So.2d 919, 921 (Fla. 4th DCA 1990). This is particularly true where in-court testimony impugning the judge's impartiality is elicited before the offended party actually makes a motion for recusal, as was the case in the present proceeding. A judge may well be drawn into the fray inadvertently long before he or she is put on notice that a motion for disqualification will be filed. Where the motion itself is oral, rather than written, and live testimony replaces factual allegations contained in affidavits, as was also the case here, the risk of impermissible judicial involvement is heightened dramatically.

Accordingly, we hold that upon filing of this opinion all motions for disqualification of a trial judge must be in writing and otherwise in conformity with this Court's rules of procedure. The writing requirement cannot be waived and a presiding judge must afford a petitioning party a reasonable opportunity to file its motion. Where a party discovers mid-trial or mid-hearing that a motion for disqualification is required, he or she may request a brief recess--which must be granted--in order to prepare the appropriate documents.

Based on the foregoing, we reverse the trial court's denial of postconviction relief and remand for a new evidentiary hearing before a different judge appointed by the chief judge of...

To continue reading

Request your trial
29 cases
  • Davis v. State
    • United States
    • Florida District Court of Appeals
    • June 3, 2020
    ...Mr. Davis—who was present while all of this unfolded—a reasonable fear that he would not receive a fair trial. Cf. Rogers v. State, 630 So. 2d 513, 514, 516 (Fla. 1993) (holding that disqualification was required where the trial judge responded to testimony from a witness about an alleged e......
  • Waterhouse v. State
    • United States
    • Florida Supreme Court
    • May 31, 2001
    ...1981, at 3. At the outset, it is necessary to understand the procedural requirements for filing a motion for recusal. See Rogers v. State, 630 So.2d 513, 515 (Fla.1993) ("Although the right to seek disqualification of a presiding judge is substantive in nature, the process governing disqual......
  • Stein v. State
    • United States
    • Florida Supreme Court
    • September 25, 2008
    ...the drafting of the sentencing order. This Court has often emphasized our concern with the appearance of partiality. See Rogers v. State, 630 So.2d 513, 515 (Fla. 1994). In Rogers, this Court held that regardless of the legal sufficiency of a motion to disqualify, a new hearing should be gr......
  • Barwick v. State
    • United States
    • Florida Supreme Court
    • July 20, 1995
    ...trial judge stepped beyond the bounds we established in Bundy v. Rudd, 366 So.2d 440 (Fla.1978), and recently affirmed in Rogers v. State, 630 So.2d 513 (Fla.1993). Specifically, we do not construe Judge Foster's references to the transcript of the April 2 hearing as anything more than a re......
  • Request a trial to view additional results
1 books & journal articles
  • The appearance of justice revisited.
    • United States
    • Journal of Criminal Law and Criminology Vol. 86 No. 3, March 1996
    • March 22, 1996
    ...the judge to pass on the factual matters alleged may create a pervasive bias sufficient to require disqualification. See Rogers v. State, 630 So. 2d 513, 516 (Fla. 1993) (requiring evidentiary hearing before different judge when original judge participated in a "mini-hearing" to determine v......

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