Suarez v. Dugger, s. 72467

• Court: United States State Supreme Court of Florida
• Citation: 13 Fla. L. Weekly 386,527 So.2d 190
• Docket Number: 72549,Nos. 72467,s. 72467
• Parties: 13 Fla. L. Weekly 386 Ernesto SUAREZ, Petitioner, v. Richard L. DUGGER, etc., Respondent. Ernesto SUAREZ, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 14 June 1988

Page 190

527 So.2d 190 13 Fla. L. Weekly 386 Ernesto SUAREZ, Petitioner,
v.
Richard L. DUGGER, etc., Respondent.
Ernesto SUAREZ, Appellant,
v.
STATE of Florida, Appellee. Nos. 72467, 72549. Supreme Court of Florida. June 14, 1988.

Page 191

Larry Helm Spalding, Capital Collateral Representative, Tallahassee, and Martin J. McClain, Carlo Obligato and Judith J. Dougherty, Office of the Capital Collateral Representative, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Robert J. Krauss and Davis G. Anderson, Asst. Attys. Gen., Tampa, for respondent/appellee.

PER CURIAM.

Suarez, currently under a death warrant, petitions the Court for a writ of habeas corpus and requests a stay of execution. Suarez also seeks review of the denial by the trial court of his motion to disqualify the trial judge and his motion to vacate judgment and sentence filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction pursuant to article V, sections 3(b)(1) and (3)(b)(9), Florida Constitution.

Suarez was found guilty of the first degree premeditated murder of a police officer in Collier County. The jury recommended and the trial court sentenced him to death for the crime. On direct appeal, this Court affirmed Suarez' conviction and sentence. Suarez v. State, 481 So.2d 1201 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986). The governor recently signed a death warrant on Suarez, prompting the instant petition and motions.

Motion to Disqualify Judge and Rule 3.850 Motion

Suarez filed a motion to disqualify Judge Hugh D. Hayes, who presided at the trial conducted March 14-26, 1984, and who was assigned to hear the motion to vacate judgment and sentence. The motion alleged that Judge Hayes should disqualify himself because (1) he would be a necessary and material witness in regard to one of the claims set forth in the Rule 3.850 motion and (2) public statements by Judge Hayes show prejudice against Suarez resulting in the prejudgment of issues adverse to Suarez prior to the taking of evidence. The motion alleges that the trial judge indicated a predisposition against Suarez on three instances during the trial and that subsequent to trial the judge continued making public expressions demonstrating a special interest in the speedy execution of the death sentence in Suarez' case in a letter addressed to the Florida Parole and Probation Commission and in statements attributed to the judge in a newspaper report.

The trial judge indicated that he would not hear the motion to disqualify until June 1, 1988, the date set for hearing argument on the Rule 3.850 motion. On this date, the trial judge denied the motion to disqualify. The trial judge then continued the hearing and heard argument and received evidence on the Rule 3.850 motion, after which the Rule 3.850 motion and application for stay of execution were also denied.

The judge with respect to whom a motion to disqualify is made may only determine whether the motion is legally sufficient and is not allowed to pass on the truth of the allegations. Livingston v. State, 441 So.2d 1083 (Fla.1983); Bundy v. Rudd, 366 So.2d 440 (Fla.1978). As we noted in Livingston, "a party seeking to disqualify a judge need only show 'a well grounded fear that he 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.' " 441 So.2d at 1086, quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (Fla.1938).

Page 192

We find that the trial judge erred in denying the motion to disqualify him. We find no merit to any of the allegations except to those addressed to the news item. We agree with appellant that the allegation in the motion that the nature of the statements attributed to Judge Hayes in the Naples Daily News on April 4, 1988 established that the judge was prejudiced against Suarez, was legally sufficient to demonstrate a basis for relief and the motion should have been granted. ¹ Fla.R.Crim.P. 3.230. These statements were made subsequent to the signing of the death warrant by Governor Martinez. We agree with Suarez that these statements are sufficient to warrant fear on his part that he would not receive a fair hearing by the assigned judge.

We therefore vacate the denial of the Rule 3.850 motion and remand with directions to conduct a new proceeding on the Rule 3.850 motion within sixty (60) days. The chief judge of the Twentieth Judicial Circuit shall assign another judge within the circuit to preside over the proceedings.

Based on our resolution of the motion to disqualify, the merits of the Rule 3.850 motion are moot. Due to the time limits set forth in the warrant, however, we...