McGibney v. Smith

District Court of Appeal of Florida

McGibney v. Smith

511 So. 2d 1083, 12 Fla. L. Weekly 2147, 1987 Fla. App. LEXIS 10175

CourtDistrict Court of Appeal of Florida

DecidedAugust 28, 1987

DocketNo. 87-1225

StatusPublished

Cited by3 cases

This text of 511 So. 2d 1083 (McGibney v. Smith) 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

McGibney v. Smith, 511 So. 2d 1083, 12 Fla. L. Weekly 2147, 1987 Fla. App. LEXIS 10175 (Fla. Ct. App. 1987).

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Opinions

UPCHURCH, Chief Judge.

This cause is before this court on a petition for writ of prohibition occasioned by the refusal of the respondent, Judge Smith, to recuse himself after a motion for disqualification was filed. This court ordered a response. Counsel for Judge Smith devoted considerable time and effort to the preparation of a detailed and thoroughly [1084]*1084researched brief on the law of disqualification.

Judge Smith argues that the allegations of the motion were insufficient to require disqualification. We disagree and were the motion otherwise in compliance with section 38.10, Florida Statutes (1985), we would issue the writ.

The motion, however, is legally insufficient in that it fails to include an affidavit as required by the statute. An acknowledgment before a notary public is attached to the motion; however, the petitioner merely acknowledges that he executed the motion, he does not swear that the facts alleged are true.

Writ DENIED.

DAUKSCH, J., concurs. COWART, J., concurs in part and dissents in part with opinion.

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