Florida Criminal Law Opinions

District Court of Appeal of Florida,

Third District.

Richard Joseph SCHISLER, Petitioner,

v.

The STATE of Florida, Respondent.

No. 07-216.

May 30, 2007.

A Case of Original Jurisdiction–Mandamus.

Fisher Lawrence and Joshua L. Fisher and Peter A. Butlien, for Petitioner.

Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for Respondent.

Before FLETCHER, WELLS, and SUAREZ, JJ.

WELLS, J.

*1 Richard Joseph Schisler petitions for a writ of mandamus to direct the trial court to quash an order denying his motion to disqualify Judge Lawrence A. Schwartz, claiming the Judge’s ruling was untimely under Rule 2.330(j) of the Florida Rules of Judicial Administration. We agree that because the trial court’s order was untimely under the rule, Schisler’s petition should be granted.

On December 8, 2006, Schisler filed a motion to disqualify Judge Lawrence A. Schwartz, claiming bias on the part of this judge. The motion was filed with the clerk of the circuit court and served by hand delivery on Judge Schwartz on the same day. According to a notation on the CJIS docket sheet, three days later, the motion was set for hearing at 9:00 a.m. on Tuesday, January 9, 2007, by Victor Wainstein, the attorney who filed the motion to disqualify on Schisler’s behalf. As scheduled, the motion was heard on January 9, 2007–32 days after it was filed and served–and denied. Schisler now maintains that this matter must be reassigned because his motion was not ruled on within 30 days. We agree and grant relief.

Rule 2.330(j), as amended in 2005, expressly states that a motion to disqualify must be ruled on immediately and no later than 30 days after service under subsection (c) of the rule. This rule also provides that disqualification results upon the failure to rule on a disqualification motion within 30 days of service of the motion:

(j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

Fla. R. Jud. Admin. 2.330(J). [FN1]

FN1. Rule 2.330(c) governing service states that “[i]n addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.”

The trial court’s failure to rule on Schisler’s motion within 30 days of its service therefore entitles Schisler to an order directing the clerk of the court to reassign this case. This is so even though the record confirms that the ruling was one day late, apparently because Schisler’s attorney acquiesced in having the motion set for hearing outside the 30 day time frame. [FN2] In Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299, 302-03 (Fla.2003), the Florida Supreme Court first imposed a bright-line 30 day rule on disqualification orders. [FN3] It also confirmed that the burden is on the court, not the litigants, to assure a determination within 30 days:

FN2. Because the thirtieth day fell on a Sunday, the order would have been timely had it been entered on Monday, January 8, making the order only one day late.

FN3. The Court also requested “that the Florida Bar Judicial Administration Rules Committee draft an amendment to rule 2.160 [the predecessor to current rule 2.330(j) ] consistent with the opinion in this case.” Tableau Fine Art Group, Inc., 853 So.2d at 303.

As an additional matter, this Court in [Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2001) ] found that the lower court’s focus on the petitioner’s failure to request a hearing on the disqualification motion was inappropriate. While this Court acknowledged that the petitioner should have requested a hearing to ensure that the trial court considered his motion, it noted that the rules did not require such a request to be made. Accordingly, this Court held that the failure of the trial judge to give an immediate ruling on the motion to disqualify violated rule 2.160. We agree with this reasoning.

*2 ….

Thus, based upon the reasoning of Fuster-Escalona and the history behind the enactment of the rule, we hold that a motion for judicial disqualification filed pursuant to Florida Rule of Judicial Administration 2.160 must be ruled on within thirty days following its presentation to the court. We believe that thirty days gives the trial court sufficient time to determine the sufficiency of a motion. A litigant who files a motion for disqualification should not be required to file a petition for a writ of mandamus to compel a trial judge to provide a ruling on the motion.

Tableau Fine Art Group, Inc., 853 So.2d at 302-03; see Fuster-Escalona, 781 So.2d at 1065 (observing “[t]he trial judge is the manager of the docket and has the ultimate responsibility to rule on pleadings that are properly pled before the court, in accord with applicable rules of procedure and court precedent”); see also G.C. v. Dep’t of Children and Families, 804 So.2d 525, 526 (Fla. 5th DCA 2002)(stating that neither sending a gentle reminder to the judge nor applying for a writ of mandamus “is a burden that should be placed on the movant. The rule places the burden on the judge to rule [as required by the disqualification rule] and the litigant should not be required to nudge the judge. Nor is it right to require a party to file a petition for writ of mandamus.”).
Therefore, under Rule 2.330(j), Schisler’s disqualification motion is deemed to have been granted because not ruled on within 30 days. Schisler’s petition for mandamus relief is therefore granted. The order under review is quashed and this matter remanded for entry of an order directing the clerk of the circuit court to reassign the instant case to a different judge.

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District Court of Appeal of Florida,

Fourth District.

James DIEUDONNE, Appellant,

v.

STATE of Florida, Appellee.

No. 4D07-1441.

May 30, 2007.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. Case No. 02-15433 CFA02.

James Dieudonne, Madison, pro se.

No appearance required for appellee.

PER CURIAM.

*1 This appeal emanates from the trial court’s order summarily denying appellant’s motion for postconviction relief. On March 9, 2007, the circuit court clerk’s office accepted for filing appellant’s 49-page motion for postconviction relief with several attached affidavits. On the face of the motion is a notation: “Sent to Judge on 3/21/07 by [initials],” which we assume are the initials of a deputy clerk. The trial court denied the motion on March 22, 2007, by an order which states merely that a hearing on the motion is unnecessary. Nothing is attached to the order conclusively refuting the allegations of the motion, and the order does not set forth any rationale for denial.

We summarily reverse. A cursory look at the motion indicates that it is technically sufficient, and the grounds raised are such that review of the proceedings, or part of them, will be necessary to determine their sufficiency. There is no need to secure a response from the office of the Attorney General on behalf of the state, because without access to the trial court file, there is no way to determine the validity of the claims.

When a trial court denies a rule 3.850 motion without an evidentiary hearing, it must “either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (citing Hoffman v. State, 571 So.2d 449, 450 (Fla.1990)). The trial court’s order in this case does neither.

The order is reversed and remanded for attachment of records conclusively refuting the allegations of the motion or for an evidentiary hearing. Fla. R.Crim. P. 3.850(d) (explaining that, where summary denial is not based on legal insufficiency of the motion on its face, the portions of the record that conclusively show the movant is not entitled to relief must be attached to the order).
STONE, WARNER and MAY, JJ., concur.

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District Court of Appeal of Florida,

Fourth District.

Monte D. BROWN, Appellant,

v.

STATE of Florida, Appellee.

No. 4D06-4309.

May 30, 2007.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 00-0425 CF10A.

Monte D. Brown, Century, pro se.

No appearance required for appellee.

PER CURIAM.

*1 Monte Brown appeals the trial court’s denial of his motion for postconviction relief under Florida Rule of Civil Procedure 3.850. We affirm in all respects except one, that being the trial court’s denial of the motion as to Ground 5.

We reverse and remand the denial of Brown’s motion as to Ground 5 alleging that trial counsel rendered ineffective assistance by advising Brown not to take the stand even after the trial court indicated that his testimony would likely be necessary to warrant a justifiable use of deadly force jury instruction, which was not ultimately given. Because the record before this Court does not refute Brown’s claims of self-defense or reveal the nature of trial counsel’s advice to him regarding taking the stand, we reverse and remand to the trial court for reconsideration of Ground 5 of Brown’s Rule 3.850 motion. On remand, the trial court shall either provide record attachments conclusively refuting Brown’s claim or conduct an evidentiary hearing.

Affirmed In Part; Reversed and Remanded In Part.
GUNTHER, FARMER and MAY, JJ., concur.

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District Court of Appeal of Florida,

Fourth District.

Elvin Earnest SANCHEZ, Appellant,

v.

STATE of Florida, Appellee.

No. 4D06-2621.

May 30, 2007.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Charles Burton, Judge; L.T. Case No. 05-3550 CFA02.

Kevin R. Anderson of Anderson & Welch, L.L.C., West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

*1 Appellant, Elvin Sanchez, appeals his conviction and sentence for possession of a firearm by a convicted felon, claiming that the trial court erred in denying his motion for a judgment of acquittal where the offense date alleged in the information was inconsistent with the date of the offense proven at trial. We affirm.

In this case, the charging document alleged that the offense occurred on March 31, 2005. There was conflicting testimony at trial as to whether the offense occurred on March 13th or March 31st. The probable cause affidavit revealed that the incident actually took place on March 13, 2005. We find that the trial court properly denied appellant’s motion for a judgment of acquittal based on the discrepancy in the dates. See Smith v. State, 573 So.2d 1079 (Fla. 4th DCA 1991) (trial court did not err in denying the defendant’s motion for a judgment of acquittal based on a discrepancy between the offense date alleged in the information and the date proven at trial, where the discrepancy did not materially alter the offenses charged and did not compromise his defense); see also Tingley v. State, 549 So.2d 649, 651 (Fla.1989). Here, appellant did not request a statement of particulars, nor did he object to evidence of the erroneous date. Further, it was clear at trial that the state was alleging only a single incident.

Appellant also claims that the trial court committed fundamental error in imposing a three-year mandatory minimum sentence under section 775.087(2), Florida Statutes, where actual possession of the firearm was not alleged in the information. Although the initial information did not allege actual possession, appellant overlooks the fact that the state filed an amended information which did allege actual possession. Thus, even if appellant had preserved this issue in a rule 3.800(b)(2) motion, the record refutes this claim of error.

Affirmed.
WARNER, KLEIN and HAZOURI, JJ., concur.

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District Court of Appeal of Florida,

Fourth District.

David SIERRA, Petitioner,

v.

STATE of Florida, Respondent.

No. 4D07-893.

May 30, 2007.

Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 06-9427 CF10A.

Jeffrey S. Grossman and Marc J. Zee, Ft. Lauderdale, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for respondent.

ON MOTION TO CLARIFY OR CORRECT OPINION

PER CURIAM.

*1 We grant the Motion to Clarify or Correct Opinion, withdraw our previously issued opinion and substitute the following in its place.

The petitioner seeks a writ of prohibition to prevent the lower court from proceeding with a criminal prosecution on the charge of felony driving while license suspended. The suspension stems from several unpaid civil driving infractions. The petitioner took advantage of the procedures outlined in section 318.14(10)(a), Florida Statutes, paid his fines and secured the reinstatement of his license prior to his arraignment on the felony charges. In accordance with Janos v. State, 763 So.2d 1094 (Fla. 4th DCA 1999), the trial court should have granted the petitioner’s motion to dismiss the felony charges, as the state concedes. Janos is directly on point and thus we grant the petition and remand the case to the trial court for proceedings consistent with Janos. We withhold issuance of a formal writ in full confidence the lower court will comply with the mandate of this Court and the holding of Janos.

Petition granted.
WARNER, FARMER and GROSS, JJ., concur.

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