Puckett v. State

591 So. 2d 326, 1992 Fla. App. LEXIS 9, 1992 WL 253

Opinion

W. SHARP, Judge.

Puckett appeals from an order entered by the trial judge refusing to disqualify himself from presiding over Puckett’s post-conviction relief motion. This is not an appealable order. Kowalski v. Boyles, 557 So.2d 885 (Fla. 5th DCA 1990). We elect to treat this cause as a petition for writ of prohibition,¹ and deny it on the merits.

Litigants have a right to seek the disqualification of a presiding judge when they have objective grounds to believe they will not receive a fair consideration at a trial or other judicial proceeding.² In this case, the facts set forth in the motion and attached affidavits assert (in sum) that the judge erroneously accepted Puckett’s plea of no contest to a manslaughter charge, and that therefore he should be disqualified from presiding over Puckett’s efforts to set aside the plea because he is and will be a material party or witness. These grounds are legally insufficient to warrant disqualification.³

Petition for Writ of Prohibition DENIED.

DAUKSCH and HARRIS, JJ„ concur.

1 . Fla.R.App.P. 9.040(c); Kowalski v. Boyles, 557 So.2d 885, 886 (Fla. 5th DCA 1990).

2 . § 38.10, Fla.Stat. (1989); Fla.R.Civ.P. 1.432(d).

3 . See, e.g., Hope v. State, 449 So.2d 1315 (Fla. 2d DCA 1984) (claim that the trial judge who had previously adjudicated defendant guilty of civil contempt would be prejudiced and would be a necessary witness in the defendant’s criminal contempt proceeding arising from the same acts insufficient to warrant disqualification); Wilisch v. Wilisch, 335 So.2d 861 (Fla. 3d DCA 1976) (a trial judge does not become a material witness in a cause merely because he had knowledge of what occurred before him in a prior proceeding); Petition of Geisser, 554 F.2d 698 (5th Cir.1977) (trial judge was not required to disqualify himself in ruling on defendant’s habeas corpus petition on the basis that he was a material witness to the disputed facts of the defendant’s plea bargain).