final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barbara McCarthy, Judge;
L.T. Case No. 13002718CF10A.
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for
defendant appeals his convictions of burglary of an occupied
dwelling, grand theft auto, and resisting an officer without
violence. The State cross-appeals the denial of its motion
for supplemental costs of prosecution. We write to explain
our affirmance of: (A) the denial of the defendant's
motions to disqualify the trial court, and (B) the denial of
the defendant's motion for mistrial. We affirm without
further comment the defendant's other issues on appeal,
as well as the State's cross-appeal.
The Motions to Disqualify
defendant first argues that the trial court erred when it
denied his motions to disqualify the presiding judge which
were based upon the judge's demeanor toward defense
review is de novo, limited to a determination as to whether
the motion to disqualify was legally sufficient as a matter
of law. Zuchel v. State, 824 So.2d 1044, 1046 (Fla.
4th DCA 2002). The sufficiency of a motion to disqualify is
governed by section 38.10, Florida Statutes (2015), and
"to decide whether the motion is legally sufficient, a
determination must be made as to whether the facts alleged
would place a reasonably prudent person in fear of not
receiving a fair and impartial trial." Pugliese v.
Deluca, 207 So.3d 974, 976 (Fla. 4th DCA 2016) (quoting
MacKenzie v. Super Kids Bargain Store, Inc., 565
So.2d 1332, 1334-35 (Fla. 1990)). Further, when reviewing the
facts alleged, we accept the movant's sworn
statements as true. Kersaint v. State, 15 So.3d 41,
41-42 (Fla. 3d DCA 2009).
defendant's first motion to disqualify was facially
insufficient, as it was not sworn nor supported by an
affidavit. While he correctly notes that an affidavit was
filed one day after he filed the first motion, the court
denied the first motion before the affidavit was filed.
Therefore, the first motion was facially deficient and
second motion to disqualify was similar to his first,
although it was not identical and did not include all of the
facts alleged in the first motion. His second motion, filed
seven days after the first, was supported by an affidavit. In
the affidavit, which was nearly identical to the contents of
the motion, the defendant stated that the trial court had
shown clear disregard for his attorneys. The next twelve
paragraphs of his twenty-five paragraph affidavit relate to
scheduling concerns. The defendant stated that the trial
court demonstrated its contempt for his attorneys by allowing
the State to delay calling two witnesses until the following
week. The defendant argued this delay demonstrated the
court's hostility toward his attorneys because the court
had previously assured his counsel that the trial would not
be extended due to counsel's pre-planned vacation.
the defendant stated that the court "threatened"
one of his attorneys at sidebar and stated that she would
make that attorney sit down if the attorney continued to
interrupt her. The defendant also asserted that the court
"scolded" his attorneys and told them not to
interrupt her, impeded his attorneys from making a record,
and showed clear favoritism to the attorneys for the State.
recognize that in other cases we have found this same
judge's treatment of defendants and defense counsel
sufficient to warrant disqualification. See Montgomery v.
State, 150 So.3d 1231 (Fla. 4th DCA 2014); Arend v.
State, 149 So.3d 126 (Fla. 4th DCA 2014). We also note
there were factual allegations in the defendant's first
motion, and in the record itself, indicating that some of the
same conduct warranting disqualification in Arend
and Montgomery may have been present in this case.
However, our review is limited to the sworn facts in the
defendant's second motion. Gates v. State, 784
So.2d 1235, 1237 (Fla. 2d DCA 2001) ("This determination
is to be based on the allegations only . . . .").
facts alleged in the second motion and supporting affidavit
were not sufficient to warrant disqualification. We
categorize the defendant's complaints into two related
groups: the first relating to scheduling, and the second
relating to the judge's treatment of his attorneys.
Regarding scheduling, the defendant argues that the court
orally assured his attorneys before trial that the trial
would conclude before April 10, 2015. However, during trial,
two of the State's witnesses were unavailable and the
court allowed them to be called the ...