Florida Criminal Law Opinions

CRYSTAL HARRAH, Petitioner, v. STATE OF FLORIDA, Respondent.

CASE NO. 1D06-4840

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

February 28, 2007, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

DISPOSITION: PETITION GRANTED.

COUNSEL: Crystal Harrah, Pro se, Petitioner.

Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.

JUDGES: ALLEN, PADOVANO, and LEWIS, JJ., CONCUR.

OPINION: Petition for Belated Appeal — Original Jurisdiction.

PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the judgments and sentences rendered on December 12, 2005, in Bay County Circuit Court case numbers 03-0818CFMA, 03-0819CFMA, 03-0820CFMA, 05-2886CFMA, 05-3423CFMA and 05-3424CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

ALLEN, PADOVANO, and LEWIS, JJ., CONCUR.

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ANTONIOUS JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D05-4025

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

February 26, 2007, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY: An appeal from the Circuit Court for Duval County. Judge Henry E. Davis.

DISPOSITION: REVERSED and REMANDED for new trial.

COUNSEL: Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES: HAWKES, THOMAS, and ROBERTS, JJ., CONCUR.

OPINION: PER CURIAM.

Appellant appeals his convictions for (1) improper exhibition of a dangerous weapon or firearm, and (2) aggravated battery while in possession of a firearm. On appeal appellant makes three arguments for reversal. First, appellant argues that the trial court erred in denying his motion for new trial, because the jury’s verdicts were legally inconsistent. n1 Second, appellant claims that the trial court abused its discretion in denying appellant’s motion for a mistrial, where some testimony supplied by the state had the effect of improperly commenting on appellant’s right to remain silent and/or improperly shifting the burden of proof onto appellant. Third, appellant argues that the [*2] trial court abused its discretion in denying his motion for a mistrial, where, on two separate occasions during direct examination, the state’s witness improperly provided inadmissible testimony of appellant’s involvement in collateral crimes, wrongs, or acts.

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n1 In addition to returning the guilty verdicts above, the jury also returned a verdict of not guilty on a charge of discharging a firearm in public.

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We find no merit in appellant’s first point on appeal; therefore, we affirm as to that point without discussion. However, we do find merit in appellant’s second argument; accordingly, appellant’s convictions and sentences are reversed and this case is remanded for a new trial. In light of our decision to reverse and remand for a new trial, appellant’s third argument is rendered moot and we decline to address the merits of that issue.

Regarding appellant’s second argument, Officer Gajewski’s testimony is “fairly susceptible” of being understood by the jury as a comment on appellant’s right to remain silent. [*3] See State v. Kinchen, 490 So. 2d 21 (Fla. 1985) (upholding the “fairly susceptible” test adopted in David v. State, 369 So. 2d 943 (Fla. 1979)). Moreover, Officer Gajewski’s testimony served to improperly shift the burden of proof onto appellant. Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991) (holding “the state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant had the burden of introducing evidence”). Because the state has failed to prove beyond a reasonable doubt that these errors did not contribute to the verdict, n2 we reverse and remand for a new trial.

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n2 “The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” See State v. DiGuilio, 491 So. 2d 1129, 1138 (1986) (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)).

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REVERSED and REMANDED for new trial.

HAWKES, THOMAS, and ROBERTS, JJ., CONCUR.

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DAVID ECHEVERRIA, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D05-6161

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

February 26, 2007, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY: An appeal from the Circuit Court for Escambia County. Michael Jones, Judge.

DISPOSITION: REVERSED and REMANDED for re-sentencing, with instructions.

COUNSEL: Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES: HAWKES, THOMAS, and ROBERTS, JJ. CONCUR.

OPINION: PER CURIAM.

Appellant appeals a circuit court order denying his motion to withdraw plea, and a separate circuit court order denying his motion to correct illegal sentence, which was filed pursuant to rule 3.800(b)(2). Appellant presents three issues on appeal. First, appellant argues that the trial court erred in denying appellant’s timely filed motion to withdraw plea, without appointing appellant conflict-free counsel to assist him in his claim. Second, appellant argues that the trial court erred in sentencing appellant in excess of the plea agreement without affirmatively offering appellant the opportunity to withdraw his plea. Third, appellant argues that the trial court erred [*2] in denying his motion to withdraw plea and his 3.800(b)(2) motion, where each motion alleged that trial counsel was ineffective for failing to advise appellant of, or raise before the court, legally meritorious statute of limitations defenses.

We agree with appellant’s second argument on appeal. Therefore, appellant’s sentence is reversed and remanded for re-sentencing with instructions. Because we are reversing on argument two, appellant’s first argument is rendered moot. Accordingly, the merits of this argument will not be addressed. We affirm as to appellant’s third argument. Appellant failed to adequately raise this argument in his motion to withdraw plea, and this argument is not cognizable in a 3.800(b)(2) motion.

FACTS

In the proceeding below, appellant faced a number of charges in Escambia County. n1 On September 6, 2005, appellant entered a plea of nolo contendere to all of the charges. On December 2, 2005, the trial court adjudicated the appellant guilty of all charges. The trial court sentenced appellant to five years imprisonment as to each of the burglary charges, to run concurrent. This was to be followed by five years of probation, concurrent on each count, [*3] but consecutive to the term in state prison. In Case Nos. 05-1495 and 05-1496, as to Count II, the appellant was placed on probation for a term of one year, concurrent with the five year probation. In the other cases, as to Count II, the appellant was placed on six months of probation concurrent with the other probations.

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n1 Case No. 05-1486, information filed April 28, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on March 10, 2003; Case No. 05-1487, information filed April 28, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on April 20, 2003; Case No. 05-1488, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 2, 2003; Case No. 05-1489, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 6, 2003; Case No. 05-1490, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 6, 2003; Case No. 05-1491, information filed April 28, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 22, 2003; Case No. 05-1492, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on June 8, 2003; Case No. 05-1493, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 13, 2003; Case No. 05-1494, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 16, 2003; Case No. 05-1495, information filed April 29, 2005, fraudulent use of a credit card and four counts of petit theft, which were alleged to have occurred on or about May 22, or May 23, 2003; Case No. 05-1496 (charges from Case No. 05-1497 consolidated), information filed April 29, 2005, fraudulent use of a credit card and two counts of petit theft, which were alleged to have occurred on May 13, 2003.

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Subsequent to sentencing, appellant filed a motion to withdraw plea. Appellant argued that the terms of his plea agreement had been violated by his sentence. Appellant’s plea agreement contained the following language:

Plea straight to Judge with a cap of 6 years state prison as an HFO (sic.) plus restitution (to be determined — court retains jurisdiction). $ 390 court costs & $ 40 pd (sic.) fee reduced to a lien — to cover all. Sentencing hearing to argue mitigation.(Emphasis added). Appellant’ motion to withdraw plea states,the terms of the plea agreement were violated because: we agreed to a 6, year cap and I was sentenced to 5 yrs state prison and 5 years probation. That’s a total of 10 year sentence which was not agreed upon. My attorney told me that they could not go over the cap. I feel [trial counsel] failed to explain the proper process. At no time was there a defense or and he failed to file certain motions to dismiss my charges after my speedy trial date. I signed a 6 year plea contract and was told verbally as well. Please assist me and grant me this motion. Thank you for your time and consideration in this matter.

On January 27, 2006, the [*5] trial court denied appellant’s motion to withdraw plea.

After filing a Notice of Appeal, but prior to filing the initial appellate brief, appellant filed a 3.800(b)(2) motion to correct illegal sentence. This motion argued appellant’s second-degree petit theft convictions, in cases 05-1486, 05-1487, 05-1488, 05-1489, 05-1490, 05-1491, 05-1492, 05-1494, 05-1495 (three counts), and 05-1496, were barred by the statute of limitations, should be vacated, and that appellant should be re-sentenced. The trial court summarily denied this motion, holding that appellant had waived the statute of limitations defense when he entered his pleas of nolo contendere.

VIOLATION OF THE PLEA AGREEMENT

The State rightfully concedes that, in this case, the trial court erred in sentencing appellant to five years of imprisonment followed by five years of probation. In addressing a similar situation, this Court has stated:

In determining the voluntariness of a plea, the trial judge is obligated to advise the defendant of the complete terms of any plea agreement, including any obligations the defendant will incur. Fla. R. Crim. P. 3.172(c)(7). Among other things, [*6] the trial court must apprise the defendant that the period of incarceration specified in the plea agreement will be followed by a period of probation, if such is the court’s intent. Failure to do so may require remand for resentencing with the terms of the plea agreement, or to afford the option of withdrawing the plea.

Eggers v. State, 624 So. 2d 336, 337-38 (Fla. 1st DCA 1993) (emphasis added). In the instant case, the record clearly shows that appellant was never informed that a period of probation would follow the six year period of incarceration specified by the plea agreement. Moreover, appellant was not afforded the opportunity to withdraw his plea once the trial court determined that it would impose a period of probation in excess of the term of supervision established by the plea agreement.

In Jefferson v. State, 515 So. 2d 407 (Fla. 1st DCA 1987), this Court was faced with a situation where an appellant “was never informed that an additional probationary period could be added to his negotiated term of incarceration, [or] . . . given the opportunity to withdraw his plea once it became apparent that the trial court intended to [*7] impose a total term of . . . supervision [in excess of his negotiated term].” This Court held that because the appellant was not properly apprised of the significance and consequences of his guilty plea, he should be remanded for re-sentencing. See Jefferson, 515 So. 2d at 408 (citing State v. Green, 421 So. 2d 508 (Fla. 1982), and Harvey v. State, 399 So. 2d 1134 (Fla. 1st DCA 1981)). This Court further ordered that, on remand, “the trial court shall either sentence the appellant to the agreed upon sentence” . . . “or allow the appellant the option of withdrawing his plea.” Jefferson, 515 So. 2d at 408.

In accordance with the above cited case law, this case is remanded for re-sentencing. On remand, the trial court may sentence appellant to a term of imprisonment, probation, or a combination of both, so long as the total period of supervision does not exceed the six-year cap established by the plea agreement. Should the trial court determine that it cannot appropriately sentence appellant within the terms of the plea agreement, then appellant should be afforded the opportunity to withdraw his plea.

STATUTE OF [*8] LIMITATIONS/INEFFECTIVE ASSISTANCE CLAIM

Assuming, without deciding, that the second-degree petit theft charges filed against appellant were barred by the statute of limitations, appellant’s argument three claims must still fail. Appellant’s claim fails, because he did not properly preserve the matter for appellate review. Appellant claims to have preserved this argument by presenting it in his 3.800(b)(2) motion to correct illegal sentence. Alternatively, appellant argues that he preserved this issue in his motion to withdraw plea. Unfortunately for appellant, neither of his asserted positions have merit.

Respecting appellant’s 3.800(b)(2) motion, it must be stated that such a motion is not the correct procedural vehicle for attacking the merits of an underlying criminal conviction. Although motions to correct an illegal sentence are recognized pursuant to both Florida Rule of Criminal Procedure 3.800 and 3.850, Yates v. State, 556 So. 2d 501, 502 (Fla. 1st DCA 1990), when the motion attacks the conviction it must be brought under rule 3.850. Wiley v. State, 604 So. 2d 6 (Fla. 1st DCA 1992) [*9] (citing Ferenc v. State, 563 So. 2d 707 (Fla. 1st DCA 1990); Gandy v. State, 560 So. 2d 1363, 1364 (Fla. 1st DCA 1990); State v. Spella, 567 So. 2d 1051, 1052 (Fla. 5th DCA 1990)). Appellant’s claim that counsel was ineffective for not raising the statute of limitations defense is a direct attack on the validity of his second-degree petit theft convictions. Accordingly, appellant’s claim is not cognizable in a 3.800(b)(2), and the trial court acted properly in denying the motion.

Finally, regarding appellant’s motion to withdraw plea, a review of the language of his motion, supra, shows that the statute of limitations argument was not presented in his motion to withdraw plea. It is true that appellant generally alleged “at no time was there a defense,” but the only defense he refers to is counsel’s failure to file a speedy trial motion to dismiss. The trial court cannot be expected to inventory the ether for every conceivable defense, so as to determine if one of them applies to appellant. Without presentation of a more specific argument, appellant’s claim cannot be considered preserved.

Section 924.051(1)(b), Florida Statutes [*10] , indicates that an argument is “preserved” when it “was timely raised before, and ruled on by, the trial court, and . . . was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” (Emphasis added). It cannot be said that appellant’s argument was sufficiently precise, so as to appraise the trial court of the argument appellant currently presents on appeal. That is to say, that it was sufficiently precise so as to inform the trial court that appellant’s counsel was ineffective for failing to move for dismissal of the second-degree petit theft charges, based on the fact that these charges were barred by the statute of limitations. Because this issue was not properly preserved, we affirm the trial court’s denial of appellant’s motion to withdraw plea.

CONCLUSION

Because we find merit in appellant’s second argument, we reverse and remand with instructions. Our decision to reverse and remand pursuant to argument two renders appellant’s first argument moot. We find that appellant’s third argument is not properly preserved; therefore, we do not address its merits. On remand, the trial court will have two options. The trial court [*11] may sentence appellant to a term of prison and/or probation not to exceed the six-year cap contemplated by the plea agreement. Alternatively, if the trial court refuses to sentence appellant within the dictates of the plea agreement, then it must provide appellant with the opportunity to withdraw his plea.

REVERSED and REMANDED for re-sentencing, with instructions.

HAWKES, THOMAS, and ROBERTS, JJ. CONCUR.

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DAVID ALLEN GAUTHIER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D05-4443

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

February 23, 2007, Opinion Filed

PRIOR HISTORY: [*1] Appeal from the Circuit Court for Volusia County, R. Michael Hutcheson, Judge.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES: GRIFFIN, THOMPSON and ORFINGER, JJ., concur.

OPINION: PER CURIAM.

David Allen Gauthier appeals from an order revoking his probation. Mr. Gauthier contends that the trial court erred by concluding that he violated the terms of his probation by changing his residence without his probation officer’s knowledge and approval. We agree and reverse.

Our standard of review for a violation of probation determination is abuse of discretion. See Bernhardt v. State, 288 So. 2d 490, 501 (Fla. 1974); Stanley v. State, 922 So. 2d 411 (Fla. 5th DCA 2006). A violation of probation must be both willful and substantial before a defendant’s probation may be revoked. See State v. Carter, 835 So. 2d 259 (Fla. 2002); Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d DCA 2005); King v. State, 817 So. 2d 935, 937 (Fla. 5th DCA 2002). [*2] The State bears the burden of providing a willful and substantial violation by competent evidence. See Stewart v. State, 926 So. 2d 413, 414 (Fla. 1st DCA 2006); Robinson, 907 So. 2d at 1286.

In this case, there was no competent, substantial evidence that Mr. Gauthier changed his residence. At best, hearsay testimony from the probation officer showed that Mr. Gauthier spent thirteen nights at his girlfriend’s home. However, that evidence was contradicted by direct testimony from Mr. Gauthier’s landlady who testified that Mr. Gauthier rented a room from her, kept his possessions there, spent most nights there, paid rent and came by almost every day, even when he did not sleep there. Because Mr. Gauthier did not have a curfew, the hearsay testimony from the probation officer alone was insufficient to support a finding that he had changed his approved residence without permission. See Thompson v. State, 890 So. 2d 382, 383 (Fla. 2d DCA 2004) (explaining that although hearsay evidence is admissible at revocation hearing, defendant’s probation or community control cannot be revoked solely on basis of hearsay).

Accordingly, we reverse [*3] the order revoking Mr. Gauthier’s probation and remand this matter for further proceedings consistent herewith.

REVERSED AND REMANDED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.

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STATE OF FLORIDA, Petitioner, v. ROY P. BALLARD, Respondent.

Case No. 2D07-407

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 23, 2007, Opinion Filed

NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY: Petition for Writ of Prohibition to the Circuit Court for Polk County; Susan W. Roberts, Judge.

DISPOSITION: Petition granted; stay vacated.

COUNSEL: Jerry Hill, State Attorney, and Victoria J. Avalon, Assistant State Attorney, Bartow; and Bill McCollum, Attorney General, Tallahassee, and Robert J. Krauss, Assistant Attorney General, Tampa, for Petitioner.

Byron P. Hileman, Winter Haven, for Respondent.

JUDGES: WALLACE, Judge. CANADY, J., Concurs. VILLANTI, J., Concurs specially with opinion.

OPINION BY: WALLACE

OPINION: WALLACE, Judge.

The State Attorney for the Tenth Judicial Circuit seeks a writ of prohibition to prevent a circuit judge from continuing to preside over a first-degree murder case that is pending in the Circuit Court for Polk County. Upon a careful review of the motion filed in the circuit court for disqualification of the judge, we conclude that the motion was legally sufficient. Accordingly, the circuit judge should have granted the motion and disqualified herself, and we grant the state attorney’s petition.

Background

The defendant in the proceedings below is Roy P. Ballard, who is currently sixty-five [*2] years of age. The Grand Jury in and for Polk County indicted Mr. Ballard for first-degree murder, a capital felony, on October 19, 2006. The case was assigned to the Honorable Susan W. Roberts. The State promptly filed a notice of intent to seek the death penalty against Mr. Ballard. The events pertinent to our consideration of the state attorney’s petition occurred at a status conference in Mr. Ballard’s case that was conducted by Judge Roberts on January 17, 2007. The persons present at the status conference included Mr. Ballard; his attorney, Byron P. Hileman, Jr.; and an assistant state attorney, Victoria Avalon. An account of the events at the status conference follows. This account is based on the State’s sworn motion for disqualification and on the court reporter’s transcript of the proceedings.

The Events at the Status Conference

When the status conference was held, Mr. Ballard’s case was scheduled for trial during a three-week trial block beginning March 19 and ending April 6, 2007. Mr. Hileman had only recently been appointed to represent Mr. Ballard after other counsel had withdrawn. After a discussion of unrelated matters, Mr. Hileman informed the court that the [*3] State was seeking the death penalty against Mr. Ballard. Mr. Hileman advised the court further that unless the State changed its position about seeking the imposition of the death penalty, he could not be ready to proceed with the penalty phase of the case in only two months when the case was then scheduled to go to trial. Ms. Avalon then confirmed to the court that the State was pursuing the death penalty against Mr. Ballard.

Immediately thereafter, Judge Roberts engaged Mr. Ballard in the following colloquy:

THE COURT: You’re still 65. How old are you now?

THE DEFENDANT: I’ll be 66 in May.

Judge Roberts then turned to Mr. Hileman and said: “Could be . . . Well, you can imagine what I might be thinking.” After receiving an affirmative response from Mr. Hileman, Judge Roberts turned to Ms. Avalon and addressed her as follows: “Okay. Is [sic] that might be a waste of the State’s resources. You might want to reevaluate given his advanced age.” Ms. Avalon made a noncommittal, but respectful, response: “I’ll make a note of that, Your Honor.”

After these remarks, the court and the attorneys had further discussions about scheduling the case for trial. Mr. Hileman emphasized [*4] the additional time and resources that he would need to prepare for trial if the State persisted in pursuing the death penalty against Mr. Ballard. Judge Roberts then turned to Ms. Avalon and engaged her in the following colloquy:

THE COURT: Okay. What would be a reasonable time for the State to go get [the case] reevaluated?

MS. AVALON: With respect to whether or not we’re seeking the death penalty?

THE COURT: Right.

MS. AVALON: As far as I’m concerned we’re not going to abandon that position unless Mr. Hill [the State Attorney] himself says otherwise. However, I’ll discuss that with him as soon as I can.

After further discussion, the court and the parties agreed to set another status conference in two weeks, on January 31, 2007.

As the January 17 status conference was drawing to a conclusion, Mr. Hileman announced that he would be filing a motion to continue the trial of the case. Judge Roberts then engaged Mr. Hileman in the following colloquy:

THE COURT: Well, I don’t want to do that because there’s a bunch of possibilities here. You said that you could be prepared for it if all you had to prepare for is the guilt phase.

MR. HILEMAN: That’s a possibility, [*5] Judge.

THE COURT: And there’s a possibility, maybe not a probability, but a possibility that the State’s not going to seek the death penalty. So, let’s see how that plays out.

MR. HILEMAN: All right. We’ll leave it on for now. And I’ll file a motion later if I feel I need to.

THE COURT: All right. . . . And we’ll see you on the 31st at 8:30.

MR. HILEMAN: Thank you, ma’am.

With that, the status conference was concluded.

The State’s Motion for Disqualification

The next day, the State filed a motion to disqualify Judge Roberts in accordance with Florida Rule of Judicial Administration 2.330. In its motion, the State claimed that Judge Roberts’ “comments regarding the suitability of the death penalty in [Mr. Ballard’s] case show that the Court had prejudged the decision regarding the death penalty in this matter.” In addition, the State asserted that the remarks that Judge Roberts directed to Ms. Avalon, “particularly [her] instruction . . . to have the State’s intent to seek the death penalty reevaluated, create an appearance that [Judge Roberts] would disregard a death recommendation.” The State concluded that Judge Roberts’ statements [*6] at the status conference displayed a disposition to rule on a matter before hearing the evidence that raised “a reasonable fear of partiality.”

On January 26, 2007, Judge Roberts entered an order that found the State’s motion to be legally insufficient and denied it. The state attorney promptly filed his petition for writ of prohibition in this court. After a preliminary review of the petition and Mr. Ballard’s response, this court entered an order staying further proceedings in the circuit court pending a ruling on the petition.

Discussion

Our review of the order denying the motion for disqualification is under a de novo standard. See Frengel v. Frengel, 880 So. 2d 763, 764 (Fla. 2d DCA 2004). In reviewing the circuit court’s order, ” ‘[o]ur task on appeal is to determine the legal sufficiency of the motion based on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.’ ” Id. (alteration in original) (quoting Hayes v. State, 686 So. 2d 694, 695 (Fla. 4th DCA 1996)). If the motion was legally sufficient, then Judge Roberts was required to immediately enter an order granting [*7] disqualification and to proceed no further in the case. Fla. R. Jud. Admin. 2.330(f). The pertinent inquiry is not whether the judge perceives himself or herself as able to act fairly and impartially, but whether a party may reasonably question the judge’s partiality. See Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).

With these principles in mind, we have carefully reviewed the State’s petition, its motion to disqualify Judge Roberts, the transcript of the status conference, and the response filed by Mr. Hileman on Mr. Ballard’s behalf. After completing this careful review, we have concluded that the challenged remarks made by Judge Roberts at the status conference may be reasonably interpreted in at least two different ways.

On the one hand, when the status conference was held, the trial of the first-degree murder case against Mr. Ballard was scheduled to begin in only two months. Mr. Hileman had only recently been appointed to the case, and he needed a reasonable amount of time to prepare for trial. With commendable candor, Mr. Hileman informed the court that he could probably be ready to proceed with the guilt phase of the [*8] trial on the scheduled date but that he did not have sufficient time or resources to prepare for the penalty phase if the State was actually going to seek the death penalty. Thus the question of whether the State would continue to pursue the death penalty against Mr. Ballard was critical to determining whether the case could proceed to trial as scheduled or if a continuance would be necessary. Judge Roberts’ remarks appear to have been intended to encourage the State to make a realistic assessment of the case so that the court and the attorneys could intelligently address the scheduling issue. Viewed in the context of the scheduling problem that was the main subject of the status conference, one may reasonably interpret Judge Roberts’ comments as intended to facilitate the fair and efficient administration of the case against Mr. Ballard, not as reflecting a prejudgment about whether life in prison without the possibility of parole–instead of death–would be the appropriate penalty if Mr. Ballard were convicted of first-degree murder.

On the other hand, we cannot overlook other implications that are inherent in Judge Roberts’ remarks. After raising the issue of Mr. Ballard’s age [*9] on her own, Judge Roberts invited the attorneys to “imagine” what she might be thinking. This invitation was followed immediately by Judge Roberts’ observation directed to Ms. Avalon that pursuing the death penalty in Mr. Ballard’s case “might be a waste of the State’s resources.” Judge Roberts continued this theme by instructing Ms. Avalon to have the case reevaluated “given [Mr. Ballard’s] advanced age.” Under these circumstances, we cannot say that the State could not reasonably conclude that Judge Roberts’ remarks reflected a prejudgment on the issue of whether it would be appropriate to impose the death penalty in Mr. Ballard’s case. The State’s fear that Judge Roberts had prejudged the question of the appropriateness of the death penalty was thus a reasonable fear, and that fear was a legally sufficient reason for the judge’s disqualification. See Konior v. State, 884 So. 2d 334, 335 (Fla. 2d DCA 2004); Pierce v. State, 873 So. 2d 618, 620 (Fla. 2d DCA 2004). Accordingly, Judge Roberts should have entered an order disqualifying herself in Mr. Ballard’s case.

Conclusion

For these reasons, we grant the petition for writ of prohibition, [*10] we vacate the stay of the circuit court proceedings that we previously imposed, and we direct the circuit judge to grant the motion for disqualification and to recuse herself from further proceedings in the case against Mr. Ballard.

Petition granted; stay vacated.

CANADY, J., Concurs.

VILLANTI, J., Concurs specially with opinion.

CONCUR BY: VILLANTI

CONCUR: VILLANTI, Judge, Specially concurring.

I concur fully in Judge Wallace’s majority opinion but write separately to point out that the trial judge has inherent authority to make a pretrial determination on whether Mr. Ballard was legally ineligible to receive the death penalty. Trial judges across this state make this determination on a regular basis without being required to recuse themselves. See State v. Steele, 921 So. 2d 538, 543 (Fla. 2005) (holding that “a trial court does not violate a clearly established principle of law in requiring the State to provide [advance] notice [of aggravating circumstances]”). It certainly would be a waste of resources, including court calendar time and defense counsel preparation, to death-qualify a jury if the facts alleged by the State did not legally support at least [*11] one statutorily required aggravator. As noted in Mr. Ballard’s response, to death-qualify a jury without such legal authority can constitute reversible error. See Reed v. State, 496 So. 2d 213 (Fla. 1st DCA 1986). However, as explained below, the trial judge was not attempting to comply with Reed when she made the objectionable comments.

In fact, there was no inquiry advanced at the status hearing even remotely resembling a Reed-type concern. At no time did either the trial judge or defense counsel ever question the factual applicability of the cold, calculated, and premeditated aggravator (CCP) alleged by the State. n1 Rather, the overture opined by the judge was whether it “might be” a waste of resources to seek to impose the death penalty on an individual sixty-five years of age. In so doing, the judge espoused a personal view on how the State should devote its resources that was unrelated to whether there was a legal basis for the State to seek the death penalty. Ironically, the judge’s probing focused on a factor which, based on the record before us, might not even constitute significant mitigation in this case. n2 Furthermore, because of the weighing [*12] process involved in death penalty cases, this should not be a concern for the court until after the penalty phase becomes necessary.

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n1 Although there may be constitutional impediments to the use of CCP in varying factual patterns, such a situation was not argued below or otherwise raised at this particular hearing. For our purposes, it is sufficient to note that CCP is a constitutional aggravator on its face. Donaldson v. State, 722 So. 2d 177, 187 n.12 (Fla. 1998).

n2 I assume the trial court did not intend to advance an argument prohibited by Hitchcock v. State, 578 So. 2d 685, 689-90 (Fla. 1990) (pointing out the irrelevancy of an argument that it costs more to carry out a death sentence than to impose a life sentence), rev’d on other grounds, 505 U.S. 1215, 120 L. Ed. 2d 892 (1992).

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Section 921.141(6)(g), Florida Statutes (2006), provides that age n3 is a mitigating circumstance, although “where the defendant is not a [*13] minor, i.e., under eighteen, ‘no per se rule exists which pinpoints a particular age as an automatic circumstance in mitigation. Instead, the trial judge is to evaluate the defendant’s age based on the evidence adduced at trial and at the sentencing hearing.’ ” Hurst v. State, 819 So. 2d 689, 697-98 (Fla. 2002) (emphasis supplied) (quoting Shellito v. State, 701 So. 2d 837, 843 (Fla. 1997)). “Determining whether a mitigating circumstance exists and the weight to be given . . . are matters within the discretion of the sentencing court.” Id. at 697. Analyzing Mr. Ballard’s age at the point the judge did here is problematic not only because case law requires this discretionary assessment be made at the conclusion of all evidence and any penalty phase, but also because age is typically used as mitigation in youthful defendant cases only. Thus, there is a paucity of precedent guiding the use of age in nonyouthful defendant cases such as Mr. Ballard’s. This precedent or any of its underlying considerations was also not discussed in relation to the judge’s comments.

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n3 Defendants who are less than eighteen years of age are death ineligible. See Roper v. Simmons, 543 U.S. 551, 161 L. Ed. 2d 1 (2005). However, there is no corresponding case law setting forth a bright-line age over which a defendant may not constitutionally be executed.

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In order for age to be legally significant mitigation in “older aged” defendant cases in Florida, the defendant’s age must be tethered to another factor such as mental health, retardation, or senility. n4 Otherwise, age “is simply a fact, every murderer has one,” and “if it is to be accorded any significant weight, it must be linked with some other characteristic of the defendant or the crime.” Echols v. State, 484 So. 2d 568, 575 (Fla. 1985). Therefore, without noting below whether Mr. Ballard actually suffers from some other factor tied to his age, the trial judge’s suggestions may or may not have been an accurate anticipation of whether his age could be significant mitigation. Even so, it was improper and not just prematurely suggestive for the judge to address an atypical specific mitigating factor in such a forceful manner, especially before the State presented its side. In the context of the proceeding below, the trial judge’s musings, even if innocuously made as suggested by defense counsel, became a judgmental comment that defense counsel should argue this particular mitigator to the jury and to the sentencing judge when and if a penalty phase occurs.

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n4 Additionally, there are specific rules dealing with mental mitigation, retardation, and incompetence. Fla. R. Crim. P. 3.202, 3.203, 3.210.

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If the recusal test were that the comments must show that the judge would in fact not impose the death penalty in this case, then this would perhaps be a closer question. However, as noted by the majority, that is not what is required–the standard is much lower. n5 Therefore, the State cannot be faulted for its view of the judge’s comments because, right or wrong, there is no way to quantify the potential for prejudice, especially in a death case. n6 Moreover, inherent in the State’s position is the precept that a decision not to impose the death penalty, even after giving the required great weight to a jury’s recommendation, is not reviewable on appeal. Only a judge’s decision to override a jury’s recommendation of life is appealable. n7 These prospects emphasize why a showing of actual prejudice should not be necessary, even when applying death-is-different considerations, in this case.

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n5 Even if the court had entered an order requiring the State to take the action to which the trial judge was alluding, recusal would still be appropriate because the comments went beyond a mere adverse ruling. [*16]

n6 For example, there is currently no requirement that the jury list what mitigation evidence it believed or the weight it gave any factor in rendering its advisory sentence. Section 921.141(2) requires the jury to deliberate only on which set of circumstances–aggravating or mitigating–cumulatively outweighed the other, § 921.141(2)(a)-(b), and “[b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death,” § 921.141(2)(c).

n7 See, e.g., Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975) (holding sentencing judge committed reversible error in imposing death sentence in lieu of the jury’s recommendation of life because the facts did not suggest that “no reasonable person could differ” that death was the only appropriate sentence).

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In conclusion, while it was certainly proper for defense counsel to attempt to ascertain whether the State would adhere to its initial assessment to seek the death penalty, the manner and mode chosen by the trial judge to answer this query was ill-advised. The judge, without being prompted by [*17] either side, improperly expanded the inquiry to include a specific consideration of Mr. Ballard’s age. Finally, by sua sponte requiring the State under the circumstances of the hearing below to address this court-generated concern, the judge also infringed upon the executive domain of the state attorney, whose office is entitled to strategize unfettered within the boundaries of its policies and duty to follow the law. To infer without articulable record reason that this separate, independent entity had not, or might not, make an appropriate legal decision, if not reminded by the court to do so, was presumptuous.

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