Darien A. HAUTER, Appellant,
STATE of Florida, Appellee.
Appeal from the Circuit Court for Citrus County, Richard A.
T. Forman, of Law Offices of Jason T. Forman, P.A., Ft.
Lauderdale, for Appellant.
Moody, Attorney General, Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona Beach, for Appellee.
A. Hauter appeals two orders entered on the same day in two
cases below. The first order denied Hauters motion to
disqualify the trial judge as "legally
insufficient." The second order, filed with the clerk of
the circuit court some fifteen minutes later, denied Hauters
motion to mitigate his sentences under Florida Rule of
Criminal Procedure 3.800(c). We treat Hauters challenge to
the denial of his motion for disqualification of the trial
judge as a petition for writ of prohibition and, as
briefly explained below, we grant the writ.
unnecessary to provide a detailed chronology that led up to
the events resulting in the filing of the motion to
disqualify the trial judge. Suffice it to say, Hauter stated
in his affidavit in support of his motion certain specific
facts showing that prior to his presentation of any evidence
or argument at his sentencing hearing for a downward
departure sentence, the judge had made comments that
indicated that he had predetermined that Hauter would receive
lengthy prison sentences. Such comments, which, for purposes
of the motion must be taken as true, provided Hauter with a
well-grounded fear that he would not receive a fair
sentencing hearing before the judge. See
Livingston v. State, 441 So.2d 1083, 1087 (Fla.
1983) (recognizing that for a motion for disqualification to
be legally sufficient, "[t]he facts alleged in the
motion need only show that the party making it has a well
grounded fear that he will not receive a fair trial at the
hands of the judge "); see also Dorch v.
State, 952 So.2d 1244, 1245 (Fla. 3d DCA 2007)
("Floridas courts have frequently held that a judge who
has made statements indicating that he or she has
predetermined the appropriate sentence is disqualified from
presiding over the entire proceeding." (quoting
Konior v. State, 884 So.2d 334, 335 (Fla. 2d DCA
State has commendably and understandably conceded that the
trial judge erred by failing to grant Hauters
legally-sufficient motion to disqualify. We agree.
Accordingly, we grant the writ and prohibit the trial judge
from further presiding in the two cases below. Additionally,
under the circumstances, because the trial judge should have
disqualified himself prior to ruling on Hauters rule
3.800(c) motion to mitigate sentences, we vacate those orders
as well, see Plaza v. Plaza, 21 So.3d 181,
182 (Fla. 3d DCA 2009) ("As a general rule, once an
order disqualifying a judge is entered, the judge is
prohibited from any further participation in the
case."), to allow the successor judge to rule on the
merits of the motion.
PETITION FOR WRIT OF PROHIBITION GRANTED; WRIT ISSUED. ORDERS
DENYING MOTIONS ...