Tanner v. State

786 So. 2d 1195, 2001 Fla. App. LEXIS 7331, 2001 WL 561664

Opinion

GREEN, Acting Chief Judge.

Stephani Heather Tanner appeals the trial court’s order denying her motion for relief pursuant to Florida Rule of Criminal Procedure 3.850 and her motion to disqualify the trial judge which was filed prior to being resentenced pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). We affirm the order denying appellant’s motion for postconviction relief, but reverse the order denying disqualification, as the motion was facially sufficient.

Defendant’s motions were based on ex parte discussions the trial judge had with trial defense counsel and a prosecutor which exchanges did not impair the trial, but did create a concern by the defendant that her sentence would be affected. While the sentence imposed on the defendant was legal, the trial judge should have recused himself. We therefore reverse defendant’s sentence and remand for resen-tencing before a different judge.

Affirmed in part, reversed in part and remanded for resentencing.

CASANUEVA and STRINGER, JJ., Concur.