JUDGES LUNCHING WITH PROSECUTORS: KOSHER?
858 So.2d 353, 28 Fla. L. Weekly D2495
District Court of Appeal of Florida, First District.
Mary M. LIVINGSTON, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D03-3221.
Oct. 30, 2003.
Defendant filed motion to disqualify judge who had presided over original trial from presiding over trial on remand. After the motion was denied, defendant filed petition for writ of prohibition. The District Court of Appeal held that: (1) motion was facially sufficient to support disqualification of judge, and (2) motion substantially complied with rule governing certification of motion to disqualify judge.
Writ granted.
West Headnotes
Defendant's assertion that judge who presided over original criminal trial had previously worked with prosecutor in State Attorney's Office, and that the judge and prosecutor maintained personal friendship which included social lunches and dinners, was facially sufficient to support petition to disqualify judge from presiding over her trial on remand.
*354 Michael R. Rollo, Pensacola; Laura L. Whiteside, Tampa, for petitioner.
Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for respondent.
PER CURIAM.
Contending that the trial judge should have granted a motion for disqualification, Mary M. Livingston petitions this court for a writ of prohibition. We have jurisdiction. Zuchel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002). We conclude that the motion was timely and facially sufficient; we therefore grant the petition.
Livingston was convicted of certain felonies and appealed to this court. Some of the convictions were affirmed, but this court found there was insufficient evidence to support other convictions. The cause was reversed and remanded for further proceedings, including resentencing. Livingston v. State, 833 So.2d 298 (Fla. 1st DCA
2002).
On remand, the cause was reassigned to Judge Jan Shackelford, who had conducted the trial and imposed the original sentence. Livingston's motion for disqualification asserted, among other things, that the defendant had learned within the previous ten days that Judge Shackelford had, in at least one other criminal matter pending before her, revealed to the parties that she and Assistant State Attorney Brenda Neel were former co-workers in the State Attorney's Office and the two maintained a current friendship which included social lunches and dinners. Ms. Neel represented the state in the circuit court proceedings which led to Livingston's original judgments and sentences. Despite her apparent intent in the other case to have the case reassigned to another judge or to request that the state replace Ms. Neel, Judge Shackelford denied Livingston's motion for disqualification as legally insufficient.
The judge's decision is reviewed on a de novo basis. Amato v. Winn Dixie Stores, 810 So.2d 979 (Fla. 1st DCA 2002). The question is whether a reasonably prudent person, faced with these facts, would be put in fear of not receiving a fair and impartial trial (or, in this case, resentencing) before this particular judge. Levine v. State, 650 So.2d 666 (Fla. 4th DCA 1995). We answer this question affirmatively. The motion satisfied the test set forth in Levine, and numerous other reported Florida decisions, for the facial sufficiency of a motion to disqualify a trial judge.............................
Accordingly, we grant the petition and remand the cause to Judge Shackelford with directions to grant the motion for disqualification and request that the Chief Circuit Judge assign another judge to preside over the resentencing of Livingston.
PETITION GRANTED.
v.
STATE of Florida, Respondent.
Writ granted.
Defendant's assertion that judge who presided over original criminal trial had previously worked with prosecutor in State Attorney's Office, and that the judge and prosecutor maintained personal friendship which included social lunches and dinners, was facially sufficient to support petition to disqualify judge from presiding over her trial on remand.
*354 Michael R. Rollo, Pensacola; Laura L. Whiteside, Tampa, for petitioner.
Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for respondent.
PER CURIAM.
Contending that the trial judge should have granted a motion for disqualification, Mary M. Livingston petitions this court for a writ of prohibition. We have jurisdiction. Zuchel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002). We conclude that the motion was timely and facially sufficient; we therefore grant the petition.
Livingston was convicted of certain felonies and appealed to this court. Some of the convictions were affirmed, but this court found there was insufficient evidence to support other convictions. The cause was reversed and remanded for further proceedings, including resentencing. Livingston v. State, 833 So.2d 298 (Fla. 1st DCA
2002).
On remand, the cause was reassigned to Judge Jan Shackelford, who had conducted the trial and imposed the original sentence. Livingston's motion for disqualification asserted, among other things, that the defendant had learned within the previous ten days that Judge Shackelford had, in at least one other criminal matter pending before her, revealed to the parties that she and Assistant State Attorney Brenda Neel were former co-workers in the State Attorney's Office and the two maintained a current friendship which included social lunches and dinners. Ms. Neel represented the state in the circuit court proceedings which led to Livingston's original judgments and sentences. Despite her apparent intent in the other case to have the case reassigned to another judge or to request that the state replace Ms. Neel, Judge Shackelford denied Livingston's motion for disqualification as legally insufficient.
The judge's decision is reviewed on a de novo basis. Amato v. Winn Dixie Stores, 810 So.2d 979 (Fla. 1st DCA 2002). The question is whether a reasonably prudent person, faced with these facts, would be put in fear of not receiving a fair and impartial trial (or, in this case, resentencing) before this particular judge. Levine v. State, 650 So.2d 666 (Fla. 4th DCA 1995). We answer this question affirmatively. The motion satisfied the test set forth in Levine, and numerous other reported Florida decisions, for the facial sufficiency of a motion to disqualify a trial judge.............................
Accordingly, we grant the petition and remand the cause to Judge Shackelford with directions to grant the motion for disqualification and request that the Chief Circuit Judge assign another judge to preside over the resentencing of Livingston.
PETITION GRANTED.
wow does that mean no more great judge lunches from the DEFENSE BAR ?????
Ross Ross Ross Ross
A not so subtle comment on the Berkowitz and Ross friendship?
Ross Ross Ross Ross Ross
Not to mention Gardiner and multiple parties.
The Berkowitz/Ross connection = definite recusal.
It's like a sorority house in there.
Nothing is kosher in Broward. Fake democrats, fake kosher, fake political processes, fake justice.
reading this it seems judge ross should warn defendants of her friendship with cathy and get a waiver. is this happening?
What do Stacy and Cathy like for lunch?
Why BARBECUE, of course!
This is absolute nonsense. Love sorority member number 7. Ask Judge Ross if she can reveal the secret handshake.
I heard today that Berkowitz was transferred out of Stacy's division.....NOT!
ok so lunches are out ... but can a judge still hump the ASA's who practice before her? But what if they are bugly-fugly ASA's?
doesn't stop our bugly-fugly judges
Come on, Gardiner's hot - I saw a stmt posted to that effect on here some time ago (so it must be true) ...
http://www.megginson.com/img/plastic-surgery.jpg
what if the lunch is not at a kosher restaurant?
Pomperdales deli on Commercial before the intercoastal bridge. Best in town.
Pickle Barrel on Hillsborough - best in Broward.
Signed,
The Anonymous Diner