State Ex Rel. Brown v. Dewell

CourtUnited States State Supreme Court of Florida
Citation131 Fla. 566,179 So. 695
PartiesSTATE ex rel. BROWN et al. v. DEWELL, Judge.
Decision Date01 March 1938

En Banc.

Original mandamus proceeding by the State, on the relation of C. A Brown and others, against Robert T. Dewell, as judge of the Criminal Court of Record in and for Polk County, to compel the respondent to assume jurisdiction in a criminal case.

Alternative writ quashed, and proceeding dismissed.

ELLIS C.J., and BUFORD, J., dissenting.

COUNSEL Whitaker Bros., of Tampa, Johnson & Bosarge, of Bartow, Charles F. Blake, of Tampa, and C. A. Boyer, of Orlando, for relators.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen and J. Rex Farrior, State's Atty., of Tampa, for respondent.


TERRELL, Justice.

Relators were indicted in Hillsborough county for kidnapping and conspiring to kidnap Eugene F. Poulnot. A change of venue was granted, the cause was transferred to Polk county where it was tried in the criminal court of record, and the defendants convicted. On writ of error to this court, the latter judgment was reversed. Brown et al. v. State, 128 Fla. 762, 175 So. 515. This opinion was clarified in a subsequent opinion filed January 5, 1938, 178 So. 153.

An indictment for murder in the second degree grew out of the same transaction as the indictment for kidnapping and conspiring to kidnap. A trial on this indictment resulted in a directed verdict for the defendants. On consultation with counsel representing the State and the defendants, the trial court set a day certain to retry the case of Brown et al. v. State, supra. Immediately thereafter the State, acting through its assistant county solicitor, Honorable J. Rex Farrior, filed a motion and affidavit suggesting the disqualification of the trial judge. On being brought to his attention, the trial judge held the said affidavit sufficient in form, and disqualified himself.

Defendants thereafter instituted this proceeding by filing their petition in this court praying for an alternative writ of mandamus directed to the respondent trial judge, commanding him to assume jurisdiction in and try said defendants, or show cause why he refused to do so. Respondent filed his return in which he denied the material allegations of the alternative writ, but asserted the right of the State to suggest his disqualification, that he considered the affidavit correct in form, and, being so, he had no alternative but to disqualify himself, but that he stood ready and willing to take charge of and try said cause if the court directed.

Under the state of the pleadings, the question with which we are confronted is whether or not under section 2674, Revised General Statutes of 1920, section 4341, Compiled General Laws of 1927, the State is authorized to file an affidavit suggesting the disqualification of a trial judge in a criminal case on the ground of prejudice.

The statute, in effect, provides that whenever 'a party' to any action or proceeding, civil or criminal, shall make and file an affidavit stating that he fears he will not receive a fair trial on account of the prejudice of the judge, stating 'the facts and the reasons' for such belief, such judge shall proceed no further therein, but another judge shall be designated in the manner provided by law to try the cause.

In our opinion, this question above stated must be answered in the affirmative. The statute by its terms is available to any party in a civil and criminal proceeding. The State is a necessary party to a criminal proceeding, and this court has held that the statute is available to it in criminal prosecutions. State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331; Dickenson v. Parks, 104 Fla. 577, 140 So. 459. In Corpus Juris, Vol. 33, page 1001, and R.C.L. Vol. 15, page 526, the question is discussed and cases cited supporting this rule. See, also, the following cases: State ex rel. Douglas v. Superior Court for King County, 121 Wash. 611, 209 P. 1097; State v. Brown, 8 Okl.Cr. 40, 126 P. 245, Ann.Cas.1914C, 394; State ex rel. McAllister v. State, 278 Mo. 570, 214 S.W. 85, 8 A.L.R. 1226.

The second question with which we are confronted may be stated as follows: Is any assistant county solicitor who has been regularly sworn and designated as such authorized to make the affidavit of disqualification provided in section 4341, Compiled General Laws of 1927?

Section 5975, Revised General Stautes of 1920, section 8248, Compiled General Laws of 1927, provides for appointment by the county solicitor of assistant county solicitors, defines their status as such when appointed, and specifies the duties that they are authorized to perform. They may perform, under the statute, the same duties and exercise the same power as the county solicitor, filing of informations excepted.

The record discloses that J. Rex Farrior was designated by the Governor to assist in the prosecution of defendants, that he was appointed by the county solicitor as assistant county solicitor of Polk county, that the affidavit of disqualification was filed by him as assistant county solicitor on behalf of the State, that the State made no objection to Mr. Farrior as assistant county solicitor, and both the county solicitor and the assistant county solicitor of Polk county certified that the affidavit of disqualification was filed in good faith.

The duties of county solicitors are the same as those of state attorneys, section 8241, Compiled General Laws of 1927, and both represent the State in criminal prosecutions. Assistant county solicitors can perform any duty that county solicitors can perform, except the signing and filing of informations. The filing of the affidavit of disqualification is not jurisdictional, and is such an act as the assistant county solicitor is competent to perform.

The only other question necessary for us to consider is whether or not the defendants as relators have stated such a case as entitled them by mandamus to require the trial judge to assume jurisdiction and try the cause for which they stand charged.

The affidavit and motion suggesting the disqualification of respondent is grounded on prejudice. Summarized, it alleges catagorically:

(1) At the former trial when the State produced as a witness one W. D. Bush, the trial judge remarked to affiant, 'I understand that W. D. Bush's testimony will be a high point in this case and I am going to bear down on him'; that after Bush was examined in chief, court was adjourned by respondent at about 3 p. m. until the following morning to give the court reporter time to transcribe his (Bush's) testimony in order that defense counsel might go over it before cross-examination, which was done the following day in an abusive and unrestricted manner over the objection of counsel for the State.

(2) At the conclusion of the testimony the trial judge gave all counsel in the case a copy of the charges he proposed to give, to some of which charges the State objected, and then there followed an animated controversy back and forth among counsel and the trial judge as to what part of the charges would be given or what the scope of the argument as to them would be. Some months later when the trial judge was requested to set one of the companion cases for trial, he flatly refused to do so until Hillsborough county paid the board bills incurred for the bailiffs in the two former trials. This unnecessary delay was given wide publicity in the press unfavorable to the trial judge and this aroused his enmity to defendants.

(3) In October, 1937, a trial of defendants was begun on a charge of second degree murder growing out of the same transaction as Brown et al. v. State, supra; that immediately after the jury was sworn, the trial judge announced that he would rule as inadmissible certain evidence affecting the charge of conspiracy to kidnap. Considerable argument of counsel was permitted as to the admission of said testimony, and the judge's ruling thereon was followed by much adverse criticism by the press.

(4) In June and December, 1937, a group of citizens from Hillsborough county went to Tallahassee and petitioned the Governor to remove the trial judge and relieve him from further participating in the trial of said cause on account of bias and prejudice against the State, and to assign another judge to try said causes. Both of said petitions were given wide publicity in the press, were commented upon unfavorably to the trial judge, and this aroused his resentment to the State's cause.

(5) During the progress of the trial of said cause lasting many days, the trial judge held secret conferences with counsel for the defendants. These conferences became so prevalent and frequent that counsel for the State protested, but they continued to the end of the trial, notwithstanding such protests.

Other charges of prejudice on the part of the trial judge based on general declarations and political intimacy between him and counsel for the defendants are made, but they will not be detailed here. The affidavit is concluded with elaborate reasons for failure to file it in ten days before the beginning of the next term of the court which are not essential to consider. Affidavits of two reputable citizens supporting the affidavit of disqualification are attached as the law requires.

Mandamus is a discretionary writ and will not be granted except on a showing of clear legal right to the remedy sought. Relators contend that the affidavit of disqualification is in every respect insufficient. They assert no other reason for the writ. It is not contended that they are as a matter of right entitled to have their case tried by respondent; that they will suffer inconvenience, undue hardship, or be deprived of material rights if it is not tried by...

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56 cases
  • Breakstone v. MacKenzie, s. 88-2392
    • United States
    • Court of Appeal of Florida (US)
    • September 14, 1989 a motion to disqualify....' " Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981) (quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (1938)). The standards set forth can, of course, be a matter of frustration for a trial judge. Although the trial j......
  • Livingston v. State, 59846
    • United States
    • United States State Supreme Court of Florida
    • October 27, 1983
    ...feels; it is a question of what feeling resides in the affiant's mind and the basis for such feeling." State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (1938). See also Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981). The question of disqualification focuses on th......
  • Peters v. Jamieson
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    • December 10, 1964
    ...of State ex rel. Douglas v. Superior Court, 121 Wash. 611, 209 P. 1097; State v. Brown, 8 Okl.Cr. 40, 126 P. 245; State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, Annot., 115 A.L.R. 866; cf., Peterson v. McKinley, supra, 45 Haw. 44, 361 P.2d 66 and Kaelemakule v. Kaelemakule, 33 Ha......
  • Barwick v. State, 80446
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    • July 20, 1995
    ...v. State, 403 So.2d 355, 361 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697 (1938). In his brief, Barwick summarized the allegations raised in his June 5, 1991, motion for disqualification as ......
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