Whitaker v. State

District Court of Appeal of Florida

Whitaker v. State

742 So. 2d 530, 1999 Fla. App. LEXIS 13721, 1999 WL 923857

District Court of Appeal of Florida·Decided October 20, 1999·No. No. 97-3934·Published·Cited by 2 cases

Opinion

PER CURIAM.

Samuel James Whitaker appeals his judgment and conviction for sale or delivery of cocaine. Whitaker raises four issues, two of which we find have merit. We find that Whitaker’s motion to recuse was legally sufficient and that the trial court should have granted the motion. See Robbins v. Robbins, 742 So.2d 395 (Fla. 2d DCA 1999) (stating that the allegation that the ex-wife socialized with the trial judge was legally sufficient to require recusal). Furthermore, we find that the trial court’s sua sponte declaration that Officer Samuel Koivisto qualified as an expert witness constituted an improper comment on the credibility of the witness. See § 90.106, Fla. Stat. (1997); Fogelman v. State, 648 So.2d 214, 219 (Fla. 4th DCA 1994).

Accordingly, we reverse and remand for a new trial. The chief judge of the fourth [531]*531judicial circuit shall assign another judge within the circuit to preside over the new trial.

WEBSTER, DAVIS and VAN NORTWICK, JJ., CONCUR.

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PER CURIAM.

Samuel James Whitaker appeals his judgment and conviction for sale or delivery of cocaine. Whitaker raises four issues, two of which we find have merit. We find that Whitaker’s motion to recuse was legally sufficient and that the trial court should have granted the motion. See Robbins v. Robbins, 742 So.2d 395 (Fla. 2d DCA 1999) (stating that the allegation that the ex-wife socialized with the trial judge was legally sufficient to require recusal). Furthermore, we find that the trial court’s sua sponte declaration that Officer Samuel Koivisto qualified as an expert witness constituted an improper comment on the credibility of the witness. See § 90.106, Fla. Stat. (1997); Fogelman v. State, 648 So.2d 214, 219 (Fla. 4th DCA 1994).

Accordingly, we reverse and remand for a new trial. The chief judge of the fourth [531]*531judicial circuit shall assign another judge within the circuit to preside over the new trial.

WEBSTER, DAVIS and VAN NORTWICK, JJ., CONCUR.

Whitaker v. State, 742 So. 2d 530, 1999 Fla. App. LEXIS 13721, 1999 WL 923857 (Fla. Ct. App. 1999).

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