Fetzner v. State

219 So. 3d 834, 2017 WL 1718851, 2017 Fla. App. LEXIS 6175
CourtDistrict Court of Appeal of Florida
DecidedMay 3, 2017
DocketNo. 4D15-2572
StatusPublished
Cited by2 cases

This text of 219 So. 3d 834 (Fetzner v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fetzner v. State, 219 So. 3d 834, 2017 WL 1718851, 2017 Fla. App. LEXIS 6175 (Fla. Ct. App. 2017).

Opinions

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 affir-mance 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 [837]*837asserted 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 following week on Monday, April 13, 2015. According to the defendant, this was a demonstration of the court’s “clear favoritism to the State.”

We agree that courts must be reasonable with scheduling and should consider the impact scheduling decisions have on the parties and their counsel. However, we disagree that the court’s decision in this case justified disqualification. Allowing the witnesses to testify the following week, as opposed to delaying the trial for weeks or months into the future, might be inconvenient to defense counsel, but is not inconsiderate to the defendant whose liberty is at stake. That is especially so in this case, where counsel failed to seek or obtain a written order before trial excusing herself during the period of the planned vacation.

As the Third District has concluded, a “trial court should not be disqualified for attempting to keep the case moving,” Cooper Tire & Rubber Co. v. Rodriguez, 997 So.2d 1124, 1126 (Fla. 3d DCA 2008), by offering other days for a proceeding. In Rodriguez, the court stated that “the only bias or prejudice exhibited on this record is one in favor of dispatch and against further delay—not for or against a party, counsel, or particular outcome.” Id. Regarding the court’s decision to allow the two witnesses to testify the following week, the same is true in this case.

The defendant’s other grouping in support of disqualification, the court’s treatment of his attorneys during trial, is also insufficient. This grouping includes allegations that the judge raised her voice at defense counsel, scolded defense counsel, pointed a finger at defense counsel in clear view of the jury, and threatened one of the defense attorneys at a sidebar that the attorney would be required to remain seated if she continued to speak on the record. The second motion and affidavit do not indicate when or why the judge engaged in this conduct or whether the State’s attorney was treated in a similar fashion. Without any context, we are unable to conclude that the conduct of the judge would cause a reasonably prudent person in the defendant’s position to fear that he could not get a fair and impartial trial.

Our conclusion is supported by Ellis v. Henning, 678 So.2d 825 (Fla. 4th DCA 1996), where the affidavit in support of disqualification alleged:

[838]*838[T]he trial judge treated plaintiffs’ counsel with “disdain and obvious animosity” and addressed counsel in a “hostile, angry manner and in a tone, expression, and body language that evinced anger, hostility, and personal contempt.” The affidavits further allege that -the trial judge accused the law firm of “playing word games,” and of “making misrepresentations ‘every time you come in here,’ and .... trying to ‘turn this Court inside out.’ ”

Id. at 827. In Ellis,

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Cite This Page — Counsel Stack

Bluebook (online)
219 So. 3d 834, 2017 WL 1718851, 2017 Fla. App. LEXIS 6175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fetzner-v-state-fladistctapp-2017.