final until disposition of timely filed motion for rehearing.
appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Jack Schramm Cox, Judge; L.T.
Case Nos. 502010CF011286AMB & 502010CF011287AMB.
Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for
challenges the revocation of his probation in two criminal
cases, contending that the trial judge departed from a
position of neutrality when he conducted an independent
investigation of a prior charge not offered by the State in
its case. The judge used that information in evaluating the
credibility of the witnesses. Because he departed from a
position of neutrality, the judge did not afford appellant
his due process right to an impartial magistrate. We
therefore reverse and remand for proceedings before another
was sentenced to prison time followed by probation for three
crimes in two separate cases: lewd and lascivious battery on
a person older than twelve, but less than sixteen, aggravated
battery, and sexual battery of a person twelve years of age
or older. After his release from prison, he violated his
probation twice and was reinstated each time, after serving
some time in jail. His probation officer filed a third
violation of probation affidavit, which is the subject of
this appeal, for an incident of indecent exposure which
allegedly occurred while appellant was incarcerated for the
second violation of probation. Appellant was accused of
exposing himself to a female jail deputy.
female deputy testified at the violation hearing that she had
worked for the Palm Beach County Sheriff's office for
twenty-eight years. On the date in question, she was assigned
to the jail's male dorm in which appellant was housed.
The female deputy knew appellant and had supervised appellant
on other occasions. As she was completing her duties, she saw
appellant looking at her and stroking his penis. She
approached appellant and he immediately put his penis back in
his pants. She wrote up a report on the incident, which led
to the filing of the affidavit of violation of probation.
the deputy's testimony, the State asked the judge to take
notice of the "clerk's file, " to which the
defense did not object. The judge queried the state as to
what specifically the state was requesting the court to
review, and the prosecutor designated the prior violations of
probation and the orders reinstating probation. The defense
objected to anything regarding the prior violations, because
they were not relevant to whether appellant violated
probation in this incident. Appellant's probation officer
then testified to his supervision of appellant and the filing
of the affidavit of violation for the exposure incident.
testified in his defense. A few days before the incident
charged in the violation of probation, appellant had asked
for supplies from the deputy, and she became aggravated with
him, telling him that he would end up in jail again. On the
date of the incident, appellant again asked the deputy for
supplies, and she became aggravated again, telling appellant
that he was doing it on purpose. She told him not to get off
of his bed. He disobeyed her and went to the TV room. She
entered the room and told him to pack his stuff, stating he
didn't listen and she would get him out of her dorm.
Appellant denied putting his hands in his pants or exposing
himself. During the five years he was previously in prison,
he never received a disciplinary report for anything like
indecent exposure. The prosecutor did not attempt to impeach
appellant on his testimony.
prosecutor and the defense counsel both presented closing
arguments. After the arguments were complete, the judge
decided to pull up the appellant's criminal record in the
clerk's database. He again asked the prosecutor which
documents she wanted the court to see. Both the prosecutor
and defense focused on the prior violations of probation and
the orders reinstating probation, and the defense again
objected on relevance grounds. The judge determined that he
wanted to look at the clerk's file, because he found it
hard to believe that the deputy would lie and risk her job by
committing perjury, if the incident never happened.
judge then asked whether there were any prior charges of
indecent exposure. The prosecutor informed the judge that
none of the prior violations of probation involved sexual
matters, as they were all technical violations. Reviewing the
clerk's complete database for appellant, the judge noted
a closed misdemeanor case from 2011 for indecent exposure.
The prosecutor indicated the case involved the deputy and
appellant in the jail in "a different set of
circumstances, " and the defense objected that the
information was outside the record and testimony. The judge
overruled the objection, stating he was "kind of
interested in knowing what that was" and suggesting the
case was relevant to the "ongoing dispute" between
appellant and the deputy. While the clerk noted that the
charge was nolle prossed, the judge wanted to look at the
probable cause affidavit, which the State was able to secure.
In the prior incident, the deputy had reported that while in
jail appellant had masturbated while staring at her. After
reviewing the affidavit, the court noted "this is almost
an identical situation." The judge commented that he
would use the case to determine if it was more probable that
the deputy or appellant was lying. Given that the indecent
exposure had happened twice, the judge found that the deputy
was more credible and that appellant had committed a willful
violation of probation.
sentencing, the state requested that the court revoke
appellant's probation and sentence him to 8.8 years. The
defense asked for reinstatement of probation. The judge again
asked about the nolle prossed misdemeanor. He then revoked
appellant's probation and sentenced him to ten year
concurrent terms on the underlying criminal convictions, with
credit for time served, from which orders appellant appeals.
litigant is entitled to nothing less than the cold neutrality
of an impartial judge, " especially when the judge acts
as the finder of fact. State ex rel. Davis v. Parks,
194 So. 613, 615 (Fla. 1939); McFadden v. State, 732
So.2d 1180, 1183, 1185 (Fla. 4th DCA 1999). The Due Process
Clause entitles a defendant to a neutral and ...