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Fetzner v. State

Florida Court of Appeals, Fourth District

May 3, 2017


         Not final until disposition of timely filed motion for rehearing.

         Appeal and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barbara McCarthy, Judge; L.T. Case No. 13002718CF10A.

          Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.

          Kuntz, J.

         The 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.

         A. The Motions to Disqualify

         The 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 counsel.

         Our 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).

         The 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 correctly denied.

         His 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.

         Next, 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.

         We 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 . . . .").

         The 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 ...

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