| [1] | SUPREME COURT OF FLORIDA |
| [2] | No. 55611 |
| [3] | 1978.FL.49585 <http://www.versuslaw.com>; 366
So. 2d 440 |
| [4] | December 22, 1978 |
| [5] | THEODORE R. BUNDY, PETITIONER, v. JOHN A. RUDD, AS CIRCUIT JUDGE OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA, RESPONDENT |
| [6] | Michael J. Minerva, Public Defender, Tallahassee, for
petitioner. |
| [7] | Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty.
Gen., Tallahassee, for respondent. |
| [8] | Author: Per Curiam |
| [9] | This case is before the Court on a petition for a writ of prohibition
to prevent the respondent from continuing to exercise jurisdiction as
trial judge in certain criminal proceedings presently pending against the
petitioner in the Leon County Circuit Court. Because the case is one in
which a sentence of death might ultimately be imposed, we have
jurisdiction. Art. V, § 3(b)(4), Fla.Const.; see Reino v. State, 352 So.2d 853 (Fla.1977). |
| [10] | By indictment filed on July 27, 1978, petitioner was charged with two
counts of murder in the first degree, three counts of attempted murder in
the first degree, and two counts of burglary of a dwelling. After entering
a plea of not guilty, petitioner filed a written motion to disqualify the
trial judge, setting forth various incidents which had transpired during
the course of the proceedings, and alleging that respondent had exhibited
such prejudice as to place petitioner in fear that he would not receive a
fair trial. The motion was accompanied by the supporting affidavits of
petitioner, of the public defender appointed to represent him, and of four
members of the public defender's staff who had participated in the
preparation of petitioner's defense. |
| [11] | On November 20, respondent entered an order denying the motion for
disqualification on the ground that the motion was legally insufficient.
The order went on to explain, and in some respects controvert, the
specific factual allegations contained in the motion. On the same day,
petitioner filed a motion for reconsideration, to which he attached
another affidavit of the public defender essentially denying that
respondent's explanatory account of certain events was truthful. When that
motion was similarly denied, again with explanation, petitioner instituted
the present action in an effort to prevent his impending trial from
commencing as scheduled on December 4. |
| [12] | Upon initial consideration, we determined that the petition on its
face demonstrated a preliminary basis for relief and entered an order
directing respondent to show cause why the motion and supporting
affidavits were not legally sufficient. Having now considered all the
relevant documents filed in this proceeding, we conclude that petitioner
is entitled to the relief requested. |
| [13] | Regardless of whether respondent ruled correctly in denying the motion
for disqualification as legally insufficient, our rules clearly provide,
and we have repeatedly held, that a judge who is presented with a motion
for his disqualification "shall not pass on the truth of the facts alleged
nor adjudicate the question of disqualification." Fla.R.Crim.P. 3.230(d);
see, e. g., Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); Suarez v. State, 95
Fla. 42, 115 So. 519 (1928); Theo. Hirsch
Co. v. McDonald Furniture Co., 94 Fla. 185, 114 So. 517 (1927). When a judge has looked beyond
the mere legal sufficiency of a suggestion of prejudice and attempted to
refute the charges of partiality, he has then exceeded the proper scope of
his inquiry and on that basis alone established grounds for his
disqualification. Our disqualification rule, which limits the trial judge
to a bare determination of legal sufficiency, was expressly designed to
prevent what occurred in this case the creation of "an intolerable
adversary atmosphere" between the trial judge and the litigant. See
Department of Revenue v. Golder, 322 So.2d 1, 7
(Fla.1975) (On Reconsideration). |
| [14] | Once a basis for disqualification has been established, prohibition is
both an appropriate and necessary remedy. Brown v. Rowe, 96 Fla.
289, 118 So. 9 (1928). Accordingly, the
writ of prohibition must issue directing respondent to disqualify himself
in all proceedings presently pending against the petitioner. We assume,
however, that the formal issuance of the writ will be
unnecessary. |
| [15] | The chief judge of the Second Judicial Circuit shall assign another
judge within the circuit to preside over proceedings pending against
petitioner, unless he shall deem it appropriate to request the chief
justice of the Supreme Court to assign a qualified judge from without the
circuit, pursuant to the provisions of Article V, Section 2(b) of the Florida
Constitution. |
| [16] | It is so ordered. |
| [17] | ENGLAND, C. J., and BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN,
JJ.,
concur. |