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State v. Dixon

Florida Court of Appeals, Third District

April 26, 2017

The State of Florida, Petitioner,
v.
Ambrose Dixon and Johan Matienzo, Respondents.

         Not final until disposition of timely filed motion for rehearing.

         Cases of Original Jurisdiction - Prohibition, Lower Tribunal Nos. 16-25725, 16-25670, 16-25669, 16-23856 Certiorari, Mandamus.

          Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for petitioner.

          Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for respondents.

          Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.

          ROTHENBERG, J.

         In these consolidated cases, the State of Florida has filed petitions seeking writs of prohibition, certiorari and mandamus. All three appellate cases arise from the trial judge's stated policy requiring the State to file an information by the twenty-first day after the arrest of the defendant or face a sua sponte release of the defendant or a reduction of the defendant's bond.

         It has long been held in the courts of this state that "every litigant is entitled to nothing less than the cold neutrality of an impartial judge." State ex rel. Davis v. Parks, 194 So. 613, 615 (Fla. 1939). Because the trial judge's on-the-record comments reflect a predisposition to release defendants from custody either on their own recognizance ("ROR") or on a de minimis release condition, such as a $1 bond, if the State fails to file charges on the twenty-first day after arrest, we conclude that the trial judge erred by denying the State of Florida's ("the State") legally sufficient motion to disqualify the trial judge in State v. Dixon, which was filed on the twenty-first day after Dixon's arrest and where the State was unprepared to file formal charges. We, therefore, grant the State's petition for writ of prohibition in State v. Dixon filed under appellate case number 3D17-281. Based on the discussion which follows, we also grant the State's petition for certiorari relief in State v. Matienzo, filed under appellate case number 3D17-158, but deny the State's petition for writ of prohibition in State v. Matienzo, filed under appellate case number 3D17-159.

         State v. Ambrose Dixon, Appellate Case Number 3D17-281.

         The defendant, Ambrose Dixon ("Dixon"), was arrested for numerous offenses in three separate cases, allegedly committed on three separate dates. In case number F16-25669, Dixon was charged with making written threats to kill or do bodily harm (a second degree felony) and making threatening or harassing phone calls (a first degree misdemeanor) on July 18, 2016. In case number F16-25725, he was charged with committing these same offenses on November 30, 2016. Lastly, in case number F16-25670, Dixon was charged with committing a strong arm robbery (a second degree felony) and grand theft (a third degree felony) on December 26, 2016. At his first appearance, a finding of probable cause was made, and at the bond hearing, Dixon was given bonds totaling $28, 500 as to all three cases, with an additional condition of house arrest.

         The Assistant State Attorney that was handling Dixon's cases: (1) was not able to complete his investigation prior to the scheduled arraignment on January 17, 2017, which was the twenty-first day after Dixon was arrested; (2) intended to ask the trial judge, the Honorable Alberto Milian ("the trial judge"), to reset the arraignment for the thirtieth day as authorized by rule 3.134, Florida Rules of Criminal Procedure (2016); and (3) was aware of the trial judge's policy of releasing defendants sua sponte, either ROR or on a $1 bond without considering any other factors when formal charges are not filed by the twenty-first day after arrest. Accordingly, the Assistant State Attorney filed a motion to disqualify the trial judge prior to his announcement at the arraignment and requested a reset of the arraignment to the thirtieth day. Accompanying the motion to disqualify was a sworn affidavit signed by the Assistant State Attorney and transcripts of the relevant proceedings in State v. Matienzo (case number F16-23856), over which the trial judge presided.

         A. Grounds For Disqualification

         As grounds for disqualification, the Assistant State Attorney identified Dixon's pending charges and current bond status and stated that the State was not going to be able to complete its investigation prior to the twenty-first day (January 17, 2017), and thus, it was going to request the trial judge to reset the arraignment for the thirtieth day. The motion also stated that the Assistant State Attorney had a well-founded fear that the trial judge would not be fair and impartial to the State when ruling on motions regarding Dixon's bond or at trial, if the case proceeded to trial, because the Assistant State Attorney was aware of the trial judge's tone and statements made in State v. Matienzo, which he argued demonstrate: (1) a predisposition to release defendants ROR or on a very low bond in every case in which the trial judge believes the charging document was not timely filed, with or without a motion by defense counsel; (2) a predisposition for assisting defendants by sua sponte granting bonds and suggesting courses of action to defense counsel; and (3) hostility towards the State Attorney's Office because the trial judge perceives the office as having a "lackadaisical bureaucratic attitude" towards the timely filing of charges.

         B. State v. Matienzo (Case Number F16-23856), Which Was Relied On By the State in State v. Dixon

         In support of his allegation regarding the trial judge's predisposition to apply such a policy, the Assistant State Attorney in State v. Dixon relied on the record in State v. Matienzo, case number F16-23856. This record reflects that when case number F16-23856 was called up for arraignment on December 20, 2016, the twenty-first day after Matienzo's arrest, Matienzo had three other felony cases pending before the trial court: (1) case number F16-14443, in which Matienzo was charged with strong arm robbery; (2) case number F16-23864, wherein Matienzo had been arrested for first degree grand theft and the arraignment had been reset for December 29, 2016, the thirtieth day; and (3) case number F16-23919, which was set for arraignment the following day. The case that was set for arraignment on December 20, 2016, case number F16-23856, was for an armed home invasion robbery with a firearm, a first degree felony punishable by life imprisonment, and two counts of aggravated battery with a firearm, second degree felonies punishable by fifteen years imprisonment with three-year minimum mandatories. Thus, Matienzo was being held without bond on that case.

         As outlined in the motion to disqualify, when case number F16-23856 was called up for arraignment on the morning of December 20, 2016, the Assistant State Attorney assigned to prosecute the case informed the trial judge that he had just finished the pre-file meetings with the witnesses and therefore he needed an extra day to generate the paperwork in order to file the charges in that case, and asked the trial judge to reset the arraignment for the following day where Matienzo was scheduled for arraignment on another case (case number F16-23919). The trial judge refused to reset the arraignment for the following day. Then, with no notice to the State, motion by defense counsel, or consideration of any of the factors that the court is required to consider when determining whether to release a defendant on bail or other conditions, see § 903.046, Fla. Stat. (2016), the trial judge sua sponte ordered that Matienzo be released ROR[1] because the State had not filed an information when the case was called for arraignment on the twenty-first day.

         Also sua sponte and with no notice to the State or motion by defense counsel, the trial judge changed the bond which had been previously set in case number F16-23864, and which had already been reset to the thirtieth day for arraignment, to ROR, which he later modified to a $1 bond. The Assistant State Attorney objected to the rulings in both cases and explained that Matienzo was going to be charged with a felony punishable by life, a non-bondable offense, in case number F16-23856, Matienzo had violated his pre-trial release in case number F16-14443, Matienzo posed a danger to the community, and firearms were involved in almost all of Matienzo's cases. The Assistant State Attorney also asked if the trial judge would reconsider his rulings if the State filed the information in case number F16-23864 within thirty minutes. The trial judge responded that he would not reconsider his rulings even if the State filed the charges in thirty minutes (and still on the twenty-first day):

THE COURT: I will not reconsider. I have made my position abundantly clear, as I have told the State on repeated occasions in numerous courtrooms, there is a duty and an obligation to act expeditiously. And the failure of the government to act is going to have some consequences. So the bond will be set at $1.00 on both of those cases.

         As promised, later that morning and still on the twenty-first day, the State filed formal charges against Matienzo in case number F16-23856, charging him with armed robbery with a firearm, a non-bondable first degree felony punishable by life, and two counts of aggravated battery with a firearm, second degree felonies punishable by fifteen years imprisonment, and an additional charge of possession of a firearm by a delinquent. Based on the filing of formal charges, the Assistant State Attorney asked the trial judge to reconsider Matienzo's bond status because the information had been filed on the twenty-first day. The trial judge denied the request stating: "When I called up the case an hour and a half ago it was not filed, so your request is hereby denied."

         When Matienzo's cases were before the trial judge the following day, December 21, 2016, for arraignment on another case, the Assistant State Attorney again asked the trial judge to reconsider his ruling on Matienzo's bond in case number F16-23856. The trial judge remained steadfast and denied the motion stating:

I put you on notice when you came into this division. You have an obligation, and I have an obligation. If you do not file the charges on a timely basis, it is on you. And there is no reason you could not have filed it yesterday. Ultimately, you filed it within an hour. Proper planning prevents poor performance. You have an obligation. You comply with that obligation. . . .
Now, I have told the division repeatedly. And I have told the defendants and I have told the public defenders and I have told the private bar that I am not going to put off somebody's liberty, so that the State can come in on the 33rd day and say, we are filing a resisting without violence. And somebody is sitting incarcerated. Since I am not a prophet, and I do not have the obligation of filing the charges, I really am going to hold your feet to the fire. That has been my position. Do not interrupt me. You did that yesterday. Do not interrupt me and do not argue with me. Your request is denied.

         When the Assistant State Attorney attempted to inquire about the bond that the trial judge had sua sponte reduced to $1 in case number F16-14443 and explain why he was approximately one hour late with filing the charges in case number F16-23856, the trial court refused to entertain either the prosecutor's question or explanation, stating: "I am not here to do a question and answer on your cases, " and "I do not require an explanation."

         On January 6, 2016, the Assistant State Attorney made one last attempt to explain the cause of the slight delay in the filing of the charges in case number F16-23856 and to apprise the trial judge of why pre-trial detention on the non-bondable offense and the additional charges was important in this case. However, rather than considering the seriousness of the charges, the fact that the charges were filed on the twenty-first day and before the trial judge had completed that morning's call of the calendar, Matienzo's dangerousness to the community, and the fact that the charged crimes allegedly occurred while Matienzo was on pre-trial release on other serious charged offenses, the trial judge continued to adhere to his stated policy of releasing defendants when the State fails to file the charges by what the trial judge has determined is timely. And then, on January 21, 2016, without listening to the Assistant State Attorney's explanation, the trial judge accused the Assistant State Attorney and the State in general of "negligence, " "dereliction" "or plain out bureaucratic laziness."

THE COURT: If all of those factors that you cite in your motion were true you, your office, the police agencies, had an obligation to file those charges in accord with the law. You chose not to. I don't know if there was negligence, or dereliction, or plain out bureaucratic laziness. I gave the gentleman a $1 bond because of the failure of the government to adhere to its responsibilities to file the charges.
If all of those factors are true, and they should be considered by a judge, whether it's me or anybody else, then your office and you should have moved to file those appropriate charges in the appropriate time. Just because a man is sitting in jail accused of a heinous crime does not give us the luxury of bureaucratic neglect and largess of somebody else's freedom. And the reason that I have made it a point in two years of stating my position that I as a gatekeeper of justice and fairness will not sit idly by when a human being is incarcerated who is either poor or facing a serious charge where he is being held without a bond and wait [here for approximately one hour] for the government to make its decision . . . . . . . .
Your motion is hereby denied. And I will stand by my ruling understanding everything that you have said, and even taking it at face value. I only wish whoever was responsible for filing those charges would have taken those factors in account. If Mr. Matienzo goes out - if he's a danger to the community like you claim the responsibility lies with you, not with me. . . . .
That is my position. I have explained it. It will continue to be my position. Just as we have the exclusionary rule to assure that law enforcement abides by the constitution[, ] in this case a bond was set because of the government's failure to act on a timely basis according to their responsibilities, and according to the law.

         C. Legal Analysis: Motion to Disqualify

         The Florida Rules of Judicial Administration provide for the disqualification of a judge when "the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge." Fla. R. Jud. Admin. 2.330(d)(1). The legal sufficiency of a motion to disqualify depends on "whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983); State v. Borrego, 105 So.3d 616, 619 (Fla. 3d DCA 2013). The allegations of fact that are contained in the motion must be taken as true, Masten v. State, 159 So.3d 996, 997 (Fla. 3d DCA 2015), and "the question of disqualification focuses not on what the judge intended, but rather how the message is received and the basis of the feeling." Great Am. Ins. Co. of N.Y. v. 2000 Island Boulevard Condo. Ass'n, 153 So.3d 384, 390 (Fla. 3d DCA 2014) (citing Livingston, 441 So.2d at 1086).

         We conclude that each of the grounds raised in the State's motion for disqualification are legally sufficient, requiring the trial judge's disqualification.

         (1) The trial judge's stated policy

         The trial judge announced his policy regarding the release of defendants if the charges are not filed on the twenty-first day after arrest. Specifically, the trial judge made the following statements: (1) "I have made my position abundantly clear, as I have told the State on repeated occasions in numerous courtrooms, there is a duty and an obligation to act expeditiously. And the failure of the government to act is going to have some consequences. So the bond will be set at $1 on both of those cases"; (2) "I gave the gentleman a $1 bond because of the failure of the government to adhere to its responsibilities to file the charges"; and (3) "That is my position. I have explained it. It will continue to be my position. Just as we have the exclusionary rule to assure that law enforcement abides by the constitution[, ] in this case a bond was set because of the government's failure to act on a timely basis according to their responsibilities, and according to the law."

         The trial judge's actions demonstrated that he was willing to adhere to this policy even when (1) a defendant had four pending felony cases and was out on pre-trial release when he was arrested for an armed home invasion robbery (a non-bondable offense) and two counts of aggravated battery with a firearm; (2) the State filed the charges on the twenty-first day, albeit approximately one hour after the case was initially called up for arraignment; and (3) the Assistant State Attorney informed the trial judge that he had just completed the pre-filing process, and he would be prepared to file the information in thirty minutes if the trial judge would pass the case to allow him to complete the paperwork. The trial judge's strict adherence to his stated policy was also demonstrated in his unwillingness to entertain the Assistant State Attorney's explanation for the delay or to consider Matienzo's danger to the community, the likelihood that Matienzo would re-offend while out of custody, and the other relevant factors a court must consider when deciding to release a ...


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